Inflammatory Speech and the "Fighting Words" Doctrine

Facts of the Case

The facts giving rise to this case have been disputed, but this is the version that was used by the Court in making its decision. On a public sidewalk in downtown Rochester, Walter Chaplinsky was distributing literature that supported his beliefs as a Jehovah's Witness and attacked more conventional forms of religion. The town marshal warned him against causing a disturbance, but Chaplinsky's conduct resulted in an upheaval that blocked the surrounding roads and caused a police officer to remove (although not arrest) him. On his way to the police station, Chaplinsky saw the town marshal again and shouted at him that he was "a God-damned racketeer" and "a damned Fascist." This verbal assault led to his arrest.

When he was questioned about what he had said, Chaplinsky admitted cursing the marshal as a racketeer and a fascist while denying that he had invoked the name of God. He was convicted of violating a state law that prohibited intentionally offensive, derisive, or annoying speech to any person who is lawfully in a street or public area. Appealing his fine, Chaplinsky argued that the law violated the First Amendment on the grounds that it was overly vague.

Question

Did Chaplinsky’s conviction violate the First Amendment?

Opinions

Majority (9): Writing for a unanimous Court, Murphy identified certain categorical exceptions to First Amendment protections. These included obscenities, certain profane and slanderous speech, and "fighting words." He found that Chaplinsky's insults fell into the final category, since they caused a direct harm to their target and could be construed to advocate an immediate breach of the peace. Thus, they lacked the social value of disseminating ideas to the public that lay behind the rights granted by the First Amendment. A state can use its police power to curb their expression in the interests of maintaining order and morality.

Minority (0):  None (unanimous decision)

Case Commentary 

Fighting words are one of the rare categorical exceptions to First Amendment protection, since normally content-based restrictions on speech would be invalidated unless the government can meet the strict scrutiny standard, which is rare. What exactly constitutes fighting words is open to debate, although words that are intended to induce an emotional response in the average person and have no basis in fact are likely to fit into this categorical exception.

Facts of the Case

A Ku Klux Klan leader in Ohio, Clarence Brandenburg, asked a Cincinnati reporter to cover a KKK rally in Hamilton County for his television station. The resulting footage captured people burning a cross and making speeches while clad in the usual KKK attire of hooded robes. The speeches mentioned taking revenge on African-Americans as well as Jews, potentially by marching on Washington on the Fourth of July. They also criticized the President, the Congress, and the Supreme Court for allegedly colluding with non-whites against whites.

Once this footage became public, Ohio authorities charged Brandenburg (who had made one of the speeches) with advocating violence under a criminal syndicalism statute. The law dated from the First World War era and responded to then-widespread concerns about anarchists, socialists, and communists. Brandenburg was convicted and sentenced to one to 10 years in prison, as well as a fine. His conviction was affirmed by a state appellate court and dismissed by the state Supreme Court.

Question

Did Ohio's criminal syndicalism law, prohibiting public speech that advocates various illegal activities, violate Brandenburg's right to free speech as protected by the First and Fourteenth Amendments?

Opinions

Majority (9): Moving beyond the clear and present danger test articulated by Justice Holmes in Schenck v. U.S. (1919), the opinion proposed an imminent lawless action test for political speech that seems to advocate overthrowing the government. It ruled that the government cannot forbid this type of speech unless it is both directed to inciting such action and is likely to actually incite it. By contrast, simply advocating a viewpoint without encouraging people to act on it, or encouraging people to act in a way that they could not be expected to act, would be protected by the First Amendment. This decision also marked the end of the bad tendency test created in decisions like Abrams v. U.S. and Whitney v. California. The Court found that the restrictions on the government's ability to control speech needed to be tightened beyond that deferential standard.

Black mostly agreed with Douglas (see below) and also pointed out that the majority's test was more novel than it claimed, discarding most significant precedents.

Taking First Amendment jurisprudence to its limit, Douglas felt that any law restricting speech should be facially unconstitutional under the First Amendment, no matter how significant the government interest advanced. There might be some flexibility during wartime, he hinted, but even expressive conduct should be protected unequivocally in most instances. Only if speech and action were "brigaded," or so inextricably tied together that the speech essentially becomes action, might the First Amendment not apply in ordinary peacetime situations.

Minority (0): None (Per Curiam opinion)

Case Commentary

The conditions that must be met to impose criminal liability for speech that incites others to illegal actions are imminent harm, a likelihood that the incited illegal action will occur, and an intent by the speaker to cause imminent illegal actions. This precedent remains the principal standard in this area of First Amendment law, since the Supreme Court has not revisited it. The absence of later decisions may result in part from the standard being constructed in such a way that it is very difficult for the government to meet. The slim possibility of success may make it not worth the effort to promulgate or defend a law in the area in most situations.

Facts of the Case

A group of teenagers, including R.A.V., made a cross and burned it in the yard of an African-American family. They were charged by the City of St. Paul under its Bias-Motivated Crime Ordinance, which was designed to impose penalties for hate crimes. R.A.V. challenged the ordinance under the First Amendment, arguing that it was overly broad and based on the content of speech. While the trial court agreed, the state Supreme Court reversed on the grounds that the ordinance was defined in a way that limited its scope to "fighting words." (These are a categorical exception to First Amendment protection.) The state Supreme Court also ruled that, while the ordinance was content-based, it was not unconstitutional for that reason because it met the strict scrutiny standard. It found that the government had a compelling interest in protecting public safety and that this ordinance was a sufficiently narrowly tailored way to achieve this goal.

Question

Is the ordinance overly broad and impermissibly content-based in violation of the First Amendment free speech clause?

Opinions

Majority (9): Obscenity, defamation, and fighting words are categorical exceptions to the First Amendment because of their content. While this ordinance may extend only to fighting words, it distinguishes among types of fighting words according to their content. It is limited to fighting words that insult or incite violence on the basis of race, religion, or gender. The city may not constitutionally impose special penalties on speakers who discuss certain subjects, so the statute is void in its entirety. There are other ways to punish a defendant for the admittedly reprehensible behavior of cross burning.

The ordinance is unconstitutional because it extends beyond fighting words to expression protected by the First Amendment. There was no need to create a new "underbreadth" rule and find that a rule is impermissible because it does not criminalize enough speech.

The outcome in this case was properly reached because the ordinance is overly broad and extends to protected speech. The strict scrutiny that usually applies to content-based regulations seemed to be used in an overly lenient manner here, though.

Minority (0): None (unaninmous decision)

Case Commentary

This is a content-specific regulation, which almost always will be invalidated based on vagueness and overbreadth. It is possible to interpret it as applying only to fighting words, but even that context does not remove the problem of its content-specific nature, which would make it unconstitutional regardless.