“Fighting Words” Doctrine Established by Supreme Court
Chaplinsky v. New Hampshire, decided on this day, was one of many cases involving the Jehovah’s Witnesses that reached the Supreme Court between the late 1930s and the early 1950s. During that time, the Jehovah’s Witnesses were one of the most reviled groups in America, in part because of their hateful anti-Catholic doctrine, but also because of their aggressively confrontational proselytizing tactics. Many of the cases established important new constitutional law protecting First Amendment rights. In this case, however, the Court limited free speech by holding that “fighting words” were not protected by the First Amendment. The Chaplinsky decision has never been directly reversed by the Court, but subsequent cases have carved out such protections for offensive speech that, apart from threats of imminent lawless action, the decision is virtually null and void.
Over the years, one of the most bitterly contested issues regarding offensive, hateful speech has involved the question of whether the First Amendment protects the free speech rights of Nazis. The ACLU first confronted the issue in the 1930s, and on April 30, 1934 adopted a policy arguing that Nazis do have free speech rights. On the basis of that policy, the ACLU defended a domestic Nazi group in the 1970s when it sought a permit for a demonstration in the heavily Jewish community of Skokie, Illinois, on October 4, 1976. The Village of Skokie sought to prevent the demonstration, but after much legal maneuvering the Seventh Circuit Court of Appeals on May 22, 1978 upheld the First Amendment rights of the Nazi group.
Walter Chaplinsky’s words (according to the indictment): “. . . You are a God-damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists . . . .”
Justice Frank Murphy: “. . . It is well understood that the right of free speech is not absolute at all times and under all circumstances. 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.”
Learn more: Kent Greenawalt, Fighting Words: Individuals, Communities, and Liberties of Speech (1995)
And more about the historic role of the Jehovah’s Witnesses and civil liberties: Shawn Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000)
Learn more about “fighting words” and the First Amendment: http://www.firstamendmentcenter.org/fighting-words