Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
In Chaplinsky v. New Hampshire,1 the Court unanimously sustained a conviction under a state law proscribing “any offensive, derisive or annoying word” addressed to any person in a public place after accepting the state court’s interpretation of the statute as being limited to “fighting words” —that is, to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The Court sustained the statute as “narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.” 2 The Court further explained that “by their very utterance,” fighting words “inflict injury or tend to incite an immediate breach of the peace.” 3 Accordingly, “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” 4
Chaplinsky still remains viable for the principle that “the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called ‘fighting words,’ those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” 5 But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. Chaplinsky thus remains the governing standard, but the Court has not upheld a government action on the basis of that doctrine since Chaplinsky itself.6
In the related “hostile audience” situation, the Court sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.7 But this case has been significantly limited by cases that hold the Fifth Amendment protects the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that government may not use breach of the peace and disorderly conduct statutes to curb such expression. Specifically, the Court has held that “speech cannot be restricted simply because it is upsetting or arouses contempt,” at least when the speech occurs in “a public place on a matter of public concern.” 8
The cases are unclear as to what extent the police must go to protect a speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder entitles the authorities to terminate the speech or other expressive conduct.9 The Court has also held that, absent incitement to illegal action, government may not punish mere expression or proscribe ideas,10 regardless of the trifling or annoying caliber of the expression.11
-
Footnotes
- 1
- 315 U.S. 568 (1942).
- 2
- 315 U.S. at 573.
- 3
- 315 U.S. at 572.
- 4
- Id.
- 5
- Cohen v. California, 403 U.S. 15, 20 (1971). Cohen’s conviction for breach of the peace, occasioned by his appearance in public with an “offensive expletive” lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection.
- 6
- The Court held that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are “fighting words” that have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 (1974); see also Eaton v. City of Tulsa, 416 U.S. 697 (1974).
- 7
- Feiner v. New York, 340 U.S. 315 (1951). See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
- 8
- Snyder v. Phelps, 562 U.S. 443, 458 (2011).
- 9
- The principle actually predates Feiner. See Cantwell v. Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 (1949). For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 (1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is Justice John Harlan’s statement of the principle reflected by Feiner. “Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951).” Cohen v. California, 403 U.S. 15, 20 (1971).
- 10
- Cohen v. California, 403 U.S. 15 (1971); Bachellar v. Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
- 11
- Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v. California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).