Fighting the Fighting Words Standard: A Call for Its Destruction
![handle is hein.journals/rutlr52 and id is 957 raw text is: Fighting the Fighting Words Standard: A Call for Its
Destruction
Wendy B. Reilly*
I. INTRODUCTION
The fighting words doctrine has overstayed its welcome as an
exception to First Amendment free speech and should be explicitly
rejected. By focusing on imminent violence as the harm to be
avoided, the doctrine inherently discriminates among victims based
on their perceived propensity to become violent. In addition, it fails
to protect people against the more pernicious effects of hateful
speech:' immobilizing fear and damaged community and individual
identities. Fighting words, as defined by the Supreme Court, are
those [words] which by their very utterance inflict injury or tend to
incite an immediate breach of the peace.2 While the first prong of
the standard is rarely applied by the courts,3 speech which is
highly likely to provoke violence [is] ordinarily made criminal by
breach of the peace or disorderly conduct provisions.4 As the Su-
preme Court articulated it in Chaplinsky v. New Hampshire,5 and
applied it in subsequent cases, the fighting words standard is justi-
fied as a means of preventing violence.6 The standard's fixation on
* J.D. Candidate 2000, Rutgers University School of Law-Newark; B.A., Doug-
lass College, Rutgers University, 1997. I thank Professors Charles Jones and Twila
Perry for helpful discussions prior to the writing of this Note and Professor James
Pope for comments on an earlier draft. In addition, thank you to the members of the
Rutgers Law Review, in particular Laura Dwyer and Maral Kazanjian, for your
editing work, and to Annmarie Pinarski, Beverly Reilly, and Brian Scholl for invalu-
able discussions and unyielding support. This Note is dedicated to Bob.
1. The terms hateful speech and hate speech will both appear in this Note.
Neither is meant to be a term of art or to refer specifically to the sort of speech actu-
ally categorized as hate speech unless that term appears in the quoted language of
another author. The words hate and hateful are invoked to indicate the force
behind this general category of speech that seeks to attack the essence of someone's
personhood. In addition, it is meant to be limited to the narrow sort of verbal assault
discussed below-that which is outside the realm of political speech.
2. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).
3. See, e.g., infra note 37 (mentioning that the United States Supreme Court
has never utilized the inflicts injury prong).
4. Kent Greenawalt, Insults and Epithets: Are They Protected Speech?, 42
RUTGERS L. REv. 287, 294 (1990).
5. 315 U.S. 568 (1942).
6. See id. at 573.](ViewImageLocal?handle=hein.journals/rutlr52&div=29&collection=&method=preview&ext=.png&size=3)
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Fighting the Fighting Words Standard: A Call for Its Destruction
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