On its face, the first amendment free speech clause of the Constitution is straightforward and unqualified, providing that, “Congress shall make no law abridging the freedom of speech, or of the press.” Despite this, the United States Supreme Court has ruled that various categories of speech fall wholly outside of first amendment protection and thus merit proper censorship in appropriate cases. Among such restricted categories of expression are: advocacy intended, and likely, to incite imminent lawless action; obscenity, child pornography, true threats, defamation, fraud, and finally “fighting words”.
The fighting words doctrine is a curious aberration from typical Supreme Court jurisprudence in that the Court has never upheld a single conviction on the basis of fighting words since its seminal establishment in Chaplinksy v. New Hampshire. Instead, since Chaplisnky, the Court has continually avoided finding factual support for fighting words by restoring to the overbreadth principle to strike down laws that by their construction sweep in protected speech along with proscribable speech.
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Is the doctrine good law? Does the disparity between the Supreme Court and lower courts’ application of the doctrine have any implications? Does this dormant doctrine lie like a loaded gun just waiting to be revived? Does this doctrine give undue protection to the violent reaction on behalf of the listener? In practice, is the fighting words doctrine applied equally to those who utter them? Could this categorical exclusion potentially chill vehement criticism of government officials? Along with examining these questions among others, this essay will explore the facts of Chaplinksy, analyze the different elements that constitute the fighting words doctrine, and finally argue that despite its intention the fighting words doctrine results in socially undesirable