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Fighting Words

“Fighting words” are another form of speech receiving less First Amendment protection than core political speech. Fighting words are those words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” or have a “direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” Chaplinski v. New Hampshire, 315 U.S. 568, 62 S. Ct.766, 86 L. Ed. 2d 1031 (1942). Where subversive advocacy exhorts large numbers of people to engage in lawless activity, fighting words are aimed at provoking a specific individual. For example, calling someone a derogatory epithet such as “fascist,” “kike,” or”faggot” may result in a street brawl, but cannot be accurately described as subversive speech.

Fighting words should also be distinguished from speech that is merely offensive. Unkind and insensitive language is heard everyday at work, on television, and sometimes even at home. But the Supreme Court has ruled that the First Amendment protects speech that merely hurts the feelings of another person. The Court has also underscored the responsibility of listeners to ignore offensive speech. Television channels can be changed, radios can be turned off, and movies can be left unattended. Other situations may require viewers of offensive expressions simply to avert their eyes. In one noteworthy case, the Court ruled that a young man had the right to wear a jacket in a state courthouse with the aphorism “F― the Draft” emblazoned across the back because persons in attendance could look away if they were offended. Cohen v. California, 403 U.S. 15, 91 S. Ct. 1780, 29L. Ed. 2d 284 (1971). “One man’s vulgarity,” the Court said, “is another’s lyric,” and the words chosen in this case conveyed a stronger message than would a subdued variation such as “Resist the Draft.”

Inside Fighting Words