Columbia Law Review
THE FIGHTING WORDS DOCTRINE
In 1942, several years after Atticus Finch was supposed to have imparted the above wisdom to his daughter Scout, the Supreme Court enunciated, for the first time, a theory of the First Amendment explicitly excluding so-called "fighting words" - "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace" 2 - from constitutional protection. Although it had never before dealt directly with the issue, the unanimous Court in Chaplinsky v. New Hampshire 3 announced that the regulation of such language by the state "has never been thought to raise any Constitutional problem." 4
Chaplinsky has generally been read as placing fighting words outside the coverage 5 of the First Amendment on a per se basis. According to this approach, there is a category of "fighting words" that, because of their content, do not constitute speech at all. Therefore, any restriction on such "speech" is constitutionally permissible.
However, the reasoning of the opinion also suggests a more subtle, contextual analysis. Seen in this light, First Amendment coverage extends to even offensive or insulting speech, and such speech is constitutionally protected as long as it does not cause responsive violence by the recipient, despite Chaplinsky's dictum that such speech has little, if any, value. 6
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