Fighting Words

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FIGHTING WORDS

In chaplinsky v. new hampshire (1942) the Supreme Court upheld the conviction of a Jehovah's Witness who called a policeman "a God damned racketeer" and "a damned Fascist," holding that "fighting words"—face-to-face words plainly likely to provoke the average addressee to fight—were not protected by constitutional free speech guarantees. Viewed narrowly, the fighting words doctrine can be seen as a per se rule effectuating the clear and present danger principle, relieving the government of proving an actual incitement by taking the words themselves as decisive. Taken broadly, Chaplinsky strips "four-letter words" of free speech protection. "It has been well observed," Justice frank murphy said, "that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

The modern tendency of the Court has been to extend partial first amendment protection to even the "excluded" areas of speech. To the extent that Chaplinsky refuses protection to four-letter words because they offend against taste or morality, it has been limited by recent decisions such as cohen v. california (1971), Gooding v. Wilson (1972), and Rosenfeld v. New Jersey (1972). The Justices appear to have been engaging in ad hoc analysis of what persons in what situations are entitled to a measure of protection from the shock to their sensibilities generated by words that, in the language of Chaplinsky, "by their very utterances inflict injury."

The shock aspect of four-letter words is obviously related to the shock element in obscenity. In fcc v. pacifica foundation (1978) the Court upheld FCC regulation of "indecent" broadcasting that involved "patently offensive" four-letter words but was not obscene. While admitting that the words in question would warrant constitutional protection under certain circumstances, the Court held that in view of their capacity to offend, their slight social value in the conveying of ideas, and the intrusive character of speech broadcast into the home, their repeated use might constitutionally be banned at least in time slots and programming contexts when children might be listening.

The recent decisions suggest that outside the direct incitement to violence context the Court is prepared to balance privacy against speech interests where four-letter words are at issue. Where statutes go beyond prohibiting incitement to violence, and also bar cursing or reviling, or using opprobrious, indecent, lascivious, or offensive language, they are likely to be held unconstitutionally vague or overbroad.

(See Lewis v. New Orleans, 1974.)

Martin Shapiro
(1986)