Fighting Words Doctrine, The
![handle is hein.journals/clr93 and id is 1541 raw text is: THE FIGHTING WORDS DOCTRINE
[Y]oujust hold your head high and keep those fists down. No
matter what anybody says to you, don't you let 'em get your
goat. Try fighting with your head for a change .... I
In 1942, several years after Atticus Finch was supposed to have
imparted the above wisdom to his daughter Scout, the Supreme Court
enunciated, for the first time, a theory of the First Amendment explic-
itly excluding so-called fighting words-those which by their very
utterance inflict injury or tend to incite an immediate breach of the
peace2-from constitutional protection. Although it had never before
dealt directly with the issue, the unanimous Court in Chaplinsky v. New
Hampshire 3 announced that the regulation of such language by the state
ha[s] never been thought to raise any Constitutional problem.'4
Chaplinsky has generally been read as placing fighting words
outside the coverage5 of the First Amendment on a per se basis.
According to this approach, there is a category of fighting words
that, because of their content, do not constitute speech at all. Therefore,
any restriction on such speech is constitutionally permissible.
However, the reasoning of the opinion also suggests a more subtle,
contextual analysis. Seen in this light, First Amendment coverage ex-
tends to even offensive or insulting speech, and such speech is constitu-
tionally protected as long as it does not cause responsive violence by
the recipient, despite Chaplinsky's dictum that such speech has little, if
any, value.6 Unlike the first approach, this second method of identify-
ing fighting words is highly context-oriented. A particular speech act
may be, under one set of circumstances, protected under the First
Amendment, while under different circumstances, where violence is
likely to occur imminently, the same speech act may constitute unpro-
tected fighting words.
Chaplinsky's ambiguity as to which of these two approaches it actu-
ally adopted stems from language in the opinion regarding the require-
ment that the speech be likely to provoke violence from the average
addressee.7 If interpreted as a measure of the insulting content of the
speech, this language would require the per se exclusion of such speech
1. Harper Lee, To Kill a Mockingbird 80 (Popular Library 1962) (1960).
2. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
3. 315 U.S. 568 (1942).
4. Id. at 572.
5. This Note adopts Frederick Schauer's distinction between coverage and
protection under the First Amendment. A speech act is covered under the First
Amendment if its regulation must receive some level of constitutional scrutiny. The
speech act is protected under the First Amendment if its regulation does not withstand
scrutiny. See Frederick Schauer, Free Speech: A Philosophical Enquiry 89-90 (1982).
6. See 315 U.S. at 572.
7. See id.
1527](ViewImageLocal?handle=hein.journals/clr93&div=52&collection=&method=preview&ext=.png&size=3)
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