By David L. Hudson Jr., First Amendment Center
Updated July 2009
An angry individual unleashes a torrent of profanity upon a police officer. The officer tries to remain calm and ignore the enraged individual. But the profanity does not stop with one curse word, and the officer arrests the person for disorderly conduct or breach of the peace.
The individual contends that the officer violated his First Amendment right to free speech, which includes the right to engage in offensive expression. The individual asserts he has the right to criticize government officials — one of the central rights the First Amendment is designed to protect. The government counters that the individual has no First Amendment protection because he has uttered “fighting words” — an unprotected category of speech. Freedom of speech is not advanced, the government asserts, by a stream of profanities with little or no intellectual substance.
Who should prevail in such a situation? Can the government constitutionally punish an individual for expressing himself in an offensive and uncivil manner? Does it matter whether the recipient of the profane outburst is a police officer?
These cases arise in two basic postures. In the first type of case, an individual faces criminal charges for disorderly conduct based on obnoxious, offensive speech and attempts to make a First Amendment-based defense. The question becomes whether the individual’s speech constituted unprotected “fighting words” or protected free speech.
In the second type, criminal charges are dropped against the individual, who then files a civil rights lawsuit alleging a violation of his First Amendment free-speech rights. He or she contends that the police violated his or her free-speech rights because they punished him (in the form of an arrest and perhaps criminal charges) for protected speech. The police counter that the individual engaged in fighting words and that the police should receive qualified immunity because a reasonable police officer in that situation would not know whether the individual’s speech constituted fighting words or protected speech.
Qualified immunity is a doctrine that shields government officials from liability when they do not violate clearly established constitutional or statutory law. If it is unclear whether an individual engaged in fighting words, the governmental official may receive qualified immunity even if the official wrongly assumes the individual uttered fighting words.
These hypothetical situations form the basis for a surprisingly complex area of First Amendment jurisprudence. The First Amendment protects a wide range of expression that many people do not like. Former U.S. Supreme Court Justice William Brennan wrote in the Court’s 1989 decision in Texas v. Johnson: “If there is a bedrock principle underlying the First Amendment, it is that government may not prohibit the expression of an idea simply because it finds it offensive or disagreeable.”
But the Supreme Court has ruled that certain offensive words — called “fighting words” — can be prohibited. The genesis of the high court’s fighting-words jurisprudence began with the 1942 decision Chaplinsky v. New Hampshire.
The Supreme Court first developed the fighting-words doctrine in the case of Walter Chaplinsky in 1942. Chaplinsky, a Jehovah’s Witness, was distributing religious literature on the streets of Rochester, N.H.
Apparently, several citizens complained about Chaplinsky’s comments. Some alleged that he was denouncing all religion as a “racket.” A city marshal named Bowering confronted Chaplinsky and warned him that people were getting restless with his activities.
Chaplinsky then allegedly said to Bowering: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
Chaplinsky was charged and convicted under a city ordinance that prohibited people in public from calling others they encountered “any offensive or derisive name.” Chaplinsky claimed that the city law violated the First Amendment.
The Supreme Court disagreed in its unanimous opinion in Chaplinsky v. New Hampshire, writing:
It is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit may be derived from them is clearly outweighed by the social interest in order and morality. “Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.”
The Court noted that the state high court had limited the construction of the city law to apply only to those “face-to-face words” or “epithets likely to provoke the average person to retaliation and thereby cause a breach of the peace.”
Chaplinsky also argued that applying the statute to him violated the First Amendment because the state had not shown that the epithets he used were true “fighting words.” The Court rejected that argument, writing that “argument is unnecessary to demonstrate that the appellations ‘damn racketeer’ and ‘damn Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”
Although the Court seemingly curtailed the fighting-words doctrine in later decisions, it has never overruled the Chaplinsky decision, so it remains in effect.
Free-speech expert Robert O’Neil, in his Law and Contemporary Problems article “Rights in Conflict: The First Amendment’s Third Century,” writes that “the Chaplinsky decision has caused no end of confusion during the ensuing six decades.”
In a series of decisions, the Court limited the fighting-words doctrine expressed in Chaplinsky. Before the end of the decade, the U.S. Supreme Court gave First Amendment protection to a controversial speaker in Terminiello v. City of Chicago. Arthur Terminiello, an ex-Catholic priest, was charged with disorderly conduct after he gave a racist, anti-Semitic speech in a Chicago auditorium to the Christian Veterans of America.
More than a thousand people were outside the auditorium gathering in protest of the meeting. Terminiello criticized the protesters and then criticized various political and racial groups.
Local police charged him with breach of the peace, defined by the trial court as any “misbehavior which violates the public peace and decorum.” The trial court instructed the jury that “misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.”
City officials argued that Terminiello could be punished because his speech constituted fighting words. The city’s argument carried the day in a state trial court and two state appeals courts. However, in May 1949, the U.S. Supreme Court overturned the conviction by a 5-4 vote. Writing for the majority, Justice William Douglas noted that the lower courts had analyzed the issue as whether the speech constituted fighting words under Chaplinsky.
However, Douglas decided the case on the overly broad nature of the jury instructions. In one of the most cited passages in First Amendment jurisprudence, Douglas wrote:
Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.
Douglas concluded that a conviction could not stand on a jury instruction that permitted the punishment of a speaker for speech that invited public dispute. He rejected the argument that the statute only punished unprotected fighting words. “Petitioner was not convicted under a statute so narrowly construed,” the court wrote. “For all anyone knows he [Terminiello] was convicted under the parts of the ordinance (as construed) which, for example, make it an offense merely to invite dispute or to bring about a condition of unrest.”
In several later decisions, the Court continued to limit when individuals could be punished for uttering offensive language. For example, the high court ruled in Cohen v. California (1971) that an individual could not be criminally prosecuted for wearing a jacket bearing the words “Fuck the Draft” into a courthouse.
Officials charged Paul Cohen with violating a California law prohibiting “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by … offensive conduct.”
The state argued that Cohen’s jacket constituted fighting words under Chaplinsky. The Supreme Court disagreed, writing in its 1971 ruling that the words on the jacket were not a “direct personal insult” and that no one had reacted violently to the jacket.
In oft-cited language, Justice John Paul Harlan wrote:
“For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves manners of taste and style so largely to the individual.”
This ruling established that fighting words should be confined to direct personal insults.
O’Neil questions whether the Chaplinsky and Cohen decisions can be reconciled: “Cohen and Chaplinsky cannot coexist indefinitely, because one [Chaplinsky] declares that offensive epithets are ‘no essential part of any exposition of ideas’ while the other insists with equal conviction that ‘one man’s vulgarity is another’s lyric.’ ”
A year after Cohen, the Supreme Court struck down the conviction of a defendant under a Georgia breach-of-the-peace law in Gooding v. Wilson. James Wilson told a police officer: “White son of a bitch, I’ll kill you,” and “You son of a bitch, I’ll choke you to death.” For these words, Wilson was arrested and convicted of disorderly conduct.
He was charged under a statute that defined disorderly conduct as follows: “Any person who shall, without provocation, use to or of another, and in his presence … opprobrious words or abusive language, tending to cause a breach of the peace … shall be guilty of a misdemeanor.”
The state argued that the statute was constitutional because it only applied to “fighting words.” However, the U.S. Supreme Court reversed the conviction, finding that the statute punished more than fighting words as defined under Chaplinsky.
The Court first examined the language of the statute. “The dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than ‘fighting’ words,” Supreme Court Justice William Brennan wrote for the majority. The court also noted that other Georgia courts had interpreted the statute to apply to more than fighting words.
The Court reached a similar result in 1974 in Lewis v. City of New Orleans. Mallie Lewis was convicted under a city law which prohibited using “obscene or opprobrious language” to police officers. Lewis was arrested after she yelled obscenities at a police officer who asked her husband to produce his driver’s license.
Justice Brennan determined that this law infringed on First Amendment freedoms because it was not confined to fighting words. He reasoned that “the proscription of the use of ‘opprobrious language,’ embraces words that do not ‘by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ” Brennan ruled that the Louisiana Supreme Court had failed to confine the statute to just fighting words.
The Court again struck down the conviction of an individual for making offensive comments to a police officer in 1987 in City of Houston v. Hill, Raymond Wayne Hill was arrested after he yelled at a police officer who was questioning his friend. Hill said to the officer: “Why don’t you pick on somebody your own size?”
The officer arrested Hill for violating a city law prohibiting a person from opposing, molesting or abusing, or interrupting a police officer during his duties.
After Hill was acquitted in municipal court, he filed a civil rights lawsuit. In his lawsuit, he asked that the federal courts declare the ordinance unconstitutional. The case eventually reached the U.S. Supreme Court which sided with Hill. Before the high court, the city argued that the ordinance prohibited “core criminal conduct.”
The Supreme Court disagreed, finding that the ordinance dealt with speech. “Contrary to the city’s contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers,” Brennan wrote.
“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” Brennan wrote.
Brennan determined that the law was not narrowly tailored to prohibit disorderly conduct or fighting words. The court concluded that the ordinance “criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement.”
As a result of these Supreme Court decisions, many state and local governments have amended their statutes to narrow significantly the range of verbal conduct that can be criminalized. Many state supreme courts have limited their laws to apply only to fighting words.
Much of the case law now centers on whether a person’s speech qualifies as fighting words. The government tends to argue that the person was charged not for his speech, but for his conduct — flailing of arms or shouting of specific unprotected threats, for example.
In the 1992 cross-burning case of R.A.V. v. City of St. Paul, Justice Antonin Scalia wrote that “the exclusion of ‘fighting words’ from the scope of the First Amendment simply means that, for purposes of that Amendment, the unprotected features of the words are, despite their verbal character, essentially a ‘nonspeech’ element of communication.” (The Court invalidated the cross-burning law because it selectively punished only a particular form of fighting words. Justice Scalia considered this to an example of unconstitutional viewpoint discrimination.)
The lower courts have had a difficult time determining whether certain epithets constitute “fighting words.” At the very least, they have reached maddeningly inconsistent results. Consider the following situations in which offensive statements were found not to constitute fighting words:
However, other courts have determined that the expressions in the following situations were fighting words:
The different results reached in the lower courts, including the examples mentioned above, are difficult to explain. O’Neil writes that “much confusion surrounds the constitutional boundaries in the quest for civility.” Generally, if an individual engages in any threatening conduct in addition to verbal assaults, a fighting-words charge is more likely to stick. Many courts will look at the full circumstances to see if profane or insulting language was accompanied by any threatening behavior or conduct.
Some courts find that police officers are held to a higher standard than other people if the angry speech is likely to lead to an immediate breach of the peace. For example, in its 2000 decision in Martilla v. City of Lynchburg, a Virginia appeals court wrote that “the First Amendment requires properly trained police officers to exercise a higher degree of restraint when confronted by disorderly conduct and abusive language.” In other words, profanity or insults directed at police are less likely to be considered fighting words than if they were aimed at other people.
Supreme Court Justice Lewis Powell articulated this concern in his concurring opinion in Lewis v. New Orleans, when he wrote that “the situation may be different where such words are addressed to a police officer trained to exercise a higher degree of restraint than the average citizen.”
Other courts have determined that the response of the recipient does not control whether expression qualifies as fighting words. For example, the Minnesota Court of Appeals wrote in its 1999 decision State v. Clay:
“A defendant can be convicted for disorderly conduct based on the utterance of fighting words without the prosecution having to prove that violence actually resulted. The focus is properly on the nature of the words and the circumstances in which they were spoken rather than on the actual response. The actual response of the addressee or object of the words is relevant, but not determinative, of the issue of whether the utterances meet the fighting words test.” [State v. Clay, CX-99-343 (Minn.App.)(9/14/99), citing In re M.A.H., 572 N.W.2d 752 (Minn.App. 1997).]
Another area of confusion in fighting-words cases stems from the use of the qualified-immunity defense. Recall that in many fighting-words cases, the question becomes whether a reasonable police officer should have known that he or she violated clearly established constitutional law in arresting an individual for disorderly conduct or breach of the peace partly because of the person’s profane or insulting language.
If the case law in a particular jurisdiction is divided on the fighting-words question, a reviewing court may grant the officer qualified immunity. In Purtell v. Mason (2008), a three-judge panel of the 7th Circuit considered the question of qualified immunity and fighting words in an unusual cases involving a suburban Chicago man who erected tombstones with his neighbors’ names and insulting messages on them. Police officer Bruce Mason arrested Jeffrey Purtell, claiming that the messages on his tombstone qualified as fighting words. Purtell sued Mason, alleging that his free-speech rights had been violated. Mason countered that he was entitled to qualified immunity because any reasonable officer would have thought that the words on the tombstones were fighting words.
The 7th Circuit panel ruled that the tombstone messages did not qualify as fighting words because they “were not, in context, the sort of provocatively abusive speech that inherently tends to incite an immediate breach of the peace.” However, the panel also granted the Mason qualified immunity, writing that the officer’s “mistake in thinking he could constitutionally order Purtell to dismantle the tombstone display on pain of arrest was one a reasonable officer might make in this situation.” The panel concluded: “First Amendment line-drawing is often difficult, even in hindsight.”
The U.S. Supreme Court issued an opinion in 2009 on qualified immunity that changed the equation in constitutional law cases. Previously, in considering qualified immunity, a court — as the 7th Circuit did in Purtell — first had to determine whether there was a constitutional violation. Then the court would consider whether the law was clearly established. But in Pearson v. Callahan (2009), the Supreme Court ruled that judges can decide the “clearly established” question first without having to tackle the often-difficult question of whether there was a constitutional violation.
In the fighting-words context, this means that a reviewing court might skip over the question of whether certain profane or insulting speech constituted fighting words and simply rule that an officer did not violate clearly established law.
The varying decisions in the lower courts — and the complexity of the qualified-immunity doctrine — show that judges struggle with whether profane speech crosses the line from protected criticism or protected expression into the realm of unprotected fighting words. As Justice Harlan wrote in his Cohen opinion: “This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.” Whether expression constitutes fighting words, remains a difficult, contentious issue that is also of “no small constitutional significance.”