The First Amendment protects free speech. Yet the U.S. Supreme Court says some kinds of speech are unprotected. This slide presentation addresses three kinds: fighting words, incitement to imminent lawless action, and true threats against individuals or groups of individuals.

1. Fighting Words
Swine!

2. Free speech or fighting words?

3. Free speech or fighting words?
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Fact: Chaplinsky, a
Jehovah's Witness, stirred up
an angry crowd with his
proselytizing.
Fact: He called a city
marshal a "damned
racketeer" and a "damned
Fascist."
Fact: The marshal arrested
him under a state law that
forbids offensive or derisive
speech or name-calling in
public.

4. Fighting words are not protected
Chaplinsky v. New
Hampshire, 1942
“…The right of free speech is
not absolute at all times and
under all circumstances.”
- Justice Frank Murphy, 1942

5. Fghting words are not protected
Chaplinsky v. New Hampshire, 1942
“There are certain well defined and narrowly limited classes of
speech, the prevention and punishment of which have 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.”

6. Fighting Words Doctrine morphs

7. Free speech or fighting words?
Terminiello v. Chicago, 1949
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.

8. Free speech invites dispute
Terminiello v. Chicago, 1949
Supreme Court overturned Terminiello's
conviction, based on incorrect jury instructions.
“...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.”
– Justice William Douglas

9. Free speech or fighting words?
Paul Cohen
arrested for
disturbing the
peace through
“offensive
conduct” for
wearing “Fuck
the Draft” on his
jacket in Los
Angeles County
Courthouse.

10. “Fuck the Draft” not fighting words
Cohen v. California, 1971
The epithet on Paul Cohen's jacket was not
directed to the “person of the hearer.” Moreover,
“no individual actually or likely to be present
could reasonably have regarded the words on
appellant's jacket as a direct personal insult.”
In other words, fighting words must be directed at
an individual within hearing distance.

11. Free speech or fighting words?
Gooding v. Wilson, 1971
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Fact: Johnny Wilson, a Vietnam War protester, made
threatening and insulting remarks to police officers.
Specifically, he said: “You son of a bitch, I’ll choke you
to death”; “White son of a bitch, I’ll kill you”; and “You
son of a bitch . . . I’ll cut you all to pieces.”
Fact: Police arrested him under a Georgia statute that
prohibited anyone from using, without provocation,
“opprobrious words or abusive language, tending to
cause a breach of the peace.” The language had to be
spoken to or about another person in his or her
presence.

12. Laws must be narrowly defined
Gooding v. Wilson, 1971
The Supreme Court, in a 5-4
split decision, declared the
statute unconstitutionally
overbroad, finding the
dictionary definitions of the
adjectives “opprobrious” and
“abusive” to reach beyond mere
fighting words. The majority, led
by Justice William Brennan,
reaffirmed the notion that
words may not be banned
simply because of their
offensive or vulgar nature.

13. Free speech or fighting words?

14. Free speech or fighting words?
R.A.V. v. City of St. Paul
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Fact: Robert Viktoria and other teenagers burned a cross on
the fenced front lawn of an African-American family.
Fact: Viktoria was convicted of several charges, including
violating the St. Paul Bias-Motivated Crime Ordinance.
Fact: The anti-bias ordinance states: "Whoever places on
public or private property a symbol, object, appellation,
characterization or graffiti, including, but not limited to, a
burning cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm or
resentment in others on the basis of race, color, creed, religion
or gender commits disorderly conduct and shall be guilty of a
misdemeanor."

15. Laws can't be content-based
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In a controversial decision,
the Supreme Court ruled that
the City of St. Paul could not
ban fighting words that were
limited to just the ones it
found objectionable – that is,
words based on race, color,
creed, religion or gender.
Writing for the majority,
Justice Antonin Scalia said:
“It (the St. Paul law) prohibits
otherwise permitted speech
solely on the basis of the
subjects the speech
addresses.”

16. Laws can't be content-based
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Writing for the minority, Justice
Byron White agreed that St.
Paul's anti-bias law violated
the First Amendment.
But they rejected the
reasoning of the majority.
Instead, they argued, the
government can't restrict
speech just because it creates
feelings of anger, alarm and
resentment.

17. Free speech or fighting words?
Although the Supreme Court has reaffirmed the
fighting words doctrine in spirit several times, it
has never actually upheld a conviction based
solely on fighting words.
Despite more than 70 years of jurisprudence
following the 1942 Chaplinsky case, courts still
have a hard time drawing the line between free
speech and fighting words.

18. Free speech or fighting words?
An Ohio woman cursed during a confrontation
with a police officer. She was convicted of
disorderly conduct.

19. Free speech!
City of Garfield Heights v. Yaro, 1999
An Ohio appeals court said her speech did not
constitute fighting words.

20. Free speech or fighting words?
Kelly Jo Hock, whose driver's license was
suspended, was observed by an Ohio
policeman driving into her apartment parking lot.
Hock refused to produce her license and
complained to the officer that she was the victim
of frequent police harassment.
She said, “Fuck you, asshole,” in a normal tone of
voice as she walked away.
She was arrested for disorderly conduct.

21. Free speech!
Commonwealth of Pennsylvania v. Hock, 1998
Pennsylvania Supreme Court held that a “single
profane remark” did not constitute fighting
words. The court ruled that a jury could not
reasonably determine that Hock's single remark
“risked an immediate breach of the peace.”

22. Free speech or fighting words?
In Hamilton, Ohio, a citizen named Johnson was
convicted of violating a city ordinance that made
it unlawful to "verbally abuse or make
derogatory remarks" to a police officer.

23. Fighting words!
City of Hamilton v. Johnson, 1999
An Ohio appeals court said the City of Hamilton's
ordinance against verbally abusing police
officers was constitutional. The reason: The
ordinance could be interpreted to apply only to
fighting words, not to other constitutionally
protected words.

24. Incitement to lawless action

25. Free speech or incitement?
Fact: Ku Klux Klan leader
Clarence Brandenburg (in
robe) invited a TV crew to
a Klan rally in 1964.
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Fact: At the rally,
Brandenburg and others
urged revenge against
African Americans, Jews
and those who supported
them.
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Fact: Brandenburg was
convicted under an Ohio
statute that made it illegal
to advocate violence.
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26. Advocacy of violence
What Brandenburg said in front of TV cameras:
“We’re not a revengent organization, but if our
president, our Congress, our Supreme Court,
continues to suppress the white, Caucasian
race, it’s possible that there might have to be
some revengeance [sic] taken.”
While Brandenburg was not evidently armed,
other Klansmen at the rally were.

27. State can't restrict advocacy
Brandenburg v. Ohio, 1969
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The Supreme Court ruled that:
"Freedoms of speech and press do not permit a
State to forbid advocacy of the use of force or
of law violation except where such advocacy is
directed to inciting or producing imminent
lawless action and is likely to incite or produce
such action."

28. The Brandenburg test
The Supreme Court decision created the
"imminent lawless action" test:
1.Intent: Is the speech intended to incite
imminent lawless action?
2.Likelihood: Is such lawless action likely?

29. True threats

30. Free speech or true threats?
Watts v. United States, 1969
At an anti-Vietnam War protest in Washington,
D.C., Robert Watts, 18, says: “If they ever make
me carry a rifle, the first man I want to get in my
sights is L.B.J. They are not going to make me
kill my black brothers.”
An undercover Army counterintelligence officer
overhears him.
Watts is convicted for threatening the life of the
president (Lyndon B. Johnson).

31. Political speech is not a true threat
Watts v. United States, 1969
Supreme Court ruled that Watts' statements were
“a kind of very crude offensive method of stating
a political opposition to the President.”
The court said the law engenders “a profound
national commitment to the principle that debate
on public issues should be uninhibited, robust,
and wide-open, and that it may well include
vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public
officials.”

32. So what is a true threat?
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Fact: Barry Black, left, and
two other men were arrested
in separate incidents for
burning crosses.
Fact: The men were
convicted under a Virginia
law that made it a felony to
burn a cross with the intent of
intimidating any person or
group of persons.
Fact: The law said the mere
fact of burning a cross was
evidence of intent to
intimidate.

33. True threats defined
Black v. Virginia, 2003
Justice Sandra Day O'Connor
defined "true threats" as
statements in which the speaker
means to communicate a
serious expression of an intent
to commit an act of unlawful
violence to a particular individual
or group of individuals.

34. True threats defined
Furthermore, the speaker need not actually intend
to carry out the threat.
Rather, a prohibition on true threats protects
individuals from the fear of violence, in addition
to protecting people from the possibility that the
threatened violence will occur.
Intimidation is a type of true threat, where a
speaker directs a threat to a person or group of
persons with the intent of placing the victim in
fear of bodily harm or death.

35. Confusion over true threats
Must a speaker intend to intimidate or threaten
others in order for the speech to be considered
a true threat?
Is it enough if the recipient reasonably believes
the speech is a threat?

36. A true threat?