Chaplinsky v. New Hampshire 1942

Appellant: Walter Chaplinsky

Appellee: State of New Hampshire

Appellant's Claim: That a state law making it a crime to call people offensive names in public violated the right to freedom of speech.

Chief Lawyer for Appellant: Hayden C. Covington

Chief Lawyer for Appellee: Frank R. Kenison

Justices for the Court: Hugo Lafayette Black, James Francis Byrnes, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Frank Murphy (writing for the Court), Stanley Forman Reed, Owen Josephus Roberts, Harlan Fiske Stone

Justices Dissenting: None

Date of Decision: March 9, 1942

Decision: The law did not violate the freedom of speech because it prohibited the use only of words that tend to provoke violence or a breach of the peace.

Significance: The decision created categories of speech, including "fighting words," that are not protected by the guarantee of freedom of speech.

A ruckus about "rackets"

Walter Chaplinsky was a Jehovah's Witness who was distributing religious material in the streets of Rochester, New Hampshire, on a busy Saturday afternoon. Jehovah's Witnesses is a sect of Christianity that believes other organized religions are evil. Chaplinsky's activity drew a crowd. Some citizens complained to the city marshal, Bowering, that Chaplinsky was likening all religion to a "racket." (A racket is a dishonest or illegal organization that takes people's money.)

Bowering told the citizens that Chaplinsky was not breaking the law, but he also warned Chaplinsky that the crowd was getting restless. A short time later, Bowering was informed that a riot was in progress. On his way to check out the situation, Bowering ran into Chaplinsky, who was being taken to the police station by a police officer. Bowering told Chaplinsky that he had warned him earlier not to start a riot. Chaplinsky responded by calling Bowering a "damned racketeer" and a "damned Fascist." (A racketeer is somebody who runs a racket. A fascist is an oppressive dictator.)

New Hampshire charged Chaplinsky with violating a state law that made it a crime to call someone an "offensive" name in public. The jury convicted Chaplinsky, and the Supreme Court of New Hampshire affirmed, or approved, the conviction. Chaplinsky appealed to the U.S. Supreme Court. He argued that convicting him of a crime for calling Bowering names violated the constitutional right to freedom of speech.

Fighting words

With a unanimous decision, the Supreme Court affirmed Chaplinsky's conviction. Writing for the Court, Justice Frank Murphy rejected Chaplinsky's argument that his conviction violated the right to freedom of speech.

The First Amendment says "Congress shall make no law . . . abridging the freedom of speech." Justice Murphy said states must recognize freedom of speech under the Due Process Clause of the Fourteenth Amendment. Murphy said, however, "that the right of free speech is not absolute at all times and under all circumstances." He explained that there are categories of speech that are not protected by the First Amendment, including obscenity, profanity, libel, and "fighting words." (Obscenity is sexually offensive material. Profanity is cursing. Libel is injuring someone's reputation with lies.)

Justice Murphy described fighting words as words that "inflict injury or tend to incite an immediate breach of the peace." He said fighting words are not protected by the First Amendment because they have almost no social value. They do not contribute meaningfully to the free flow of ideas in society, which is what the First Amendment was designed to protect.

Justice Murphy decided that the names "damned racketeer" and "damned Fascist" would obviously provoke the average person to fight and cause a breach of the peace. That meant they were fighting words that were unprotected by the First Amendment. Chaplinsky's conviction for using those words did not violate the right to freedom of speech.

The Court's position on free speech has been modified since the Chaplinsky decision came down in 1942. Today profanity is protected by the First Amendment. For example, in Cohen v. California (1971), the Supreme Court reversed the conviction of a man who wore a jacket that said "Fuck the Draft" in a courtroom. Libel also receives some First Amendment protection. Fighting words are still unprotected, but only if they provoke an immediate hostile reaction rather than simply tending to cause a breach of the peace. Obscenity is still unprotected under the First Amendment.

Suggestions for further reading

Evans, J. Edward. Freedom of Speech. Minneapolis, MN: Lerner Publications, Inc., 1990.

HATE SPEECH

Speech that promotes hatred toward a particular race, religion, gender, or other group is called hate speech. Hate speech seemed to be on the rise in the United States at the end of the twentieth century. Many governments and universities have created laws and rules to prohibit hate speech. They believe hate speech discourages the targeted people from participating in society as equal citizens.

Laws prohibiting hate speech, however, may violate the First Amendment guarantee of freedom of speech. Many feel it is dangerous for the government to outlaw speech that some or even most people find to be offensive. It can be the first step to eliminating all free speech. Perhaps, they say, the United States should fight hate speech by encouraging tolerance and acceptance instead of outlawing categories of speech.

Farish, Leah. The First Amendment: Freedom of Speech, Religion, and the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.

King, David C. The Right to Speak Out. Brookfield, CT: Millbrook Press, 1997.

Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver Burdett Press, 1991.

Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in America. Brookfield, CT: Millbrook Press, 1992.

Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New York: Franklin Watts, 1997.

Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside, NJ: Enslow Publishers, Inc., 1995.