Them's Fighting Words!


Listen Later

Bring up the term "fighting words," and many cartoon fans of a certain age will recall the famous Looney Tunes short where Bugs Bunny dares Yosemite Sam to "step over this line" until he walks off the edge of a cliff.  When it comes to cartoon taunts, "Them's fighting words" comes out only a nose ahead of Snagglepuss's "Put up your dukes, your duchesses, even!"  (so jaunty!)  In the legal realm, the Fighting Words doctrine refers to an exception to the First Amendment's protection of free speech.  Exception, you say? Hard to believe that a country whose values seem to be rooted in being able to say whatever, whenever, would carve out exceptions to such a fundamental right. But if pop culture teaches us anything (or perhaps, everything), it's that even free speech has its limits. After all, you can't say "bomb" on an airplane, right? And so it is with fighting words.  The doctrine was first established in the United States in a 1942 Supreme Court case, Chaplinsky v. New Hampshire. In a unanimous decision, the Court stated: "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 that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It was been well observed that 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." Writing for the Court, Justice Frank Murphy further described "such utterances" as "no essential part of any exposition of ideas" and "of such slight social value as a step to truth." A rather bold indictment of mere words, especially for a society essentially founded upon First Amendment values.   In the seventy years since Chaplinsky, the Supreme Court has opined on several cases involving speech which could fairly be construed as "fighting words." Take this quick pop quiz--if you answer correctly, it counts toward an unaccredited law degree in California: Which of these circumstances were determined to involve unprotected "fighting words" by the U.S. Supreme Court: (a) In 1971, a man wears a jacket saying "Fuck the Draft" in a courthouse. (b) A man assaults a police officer while saying, "You son of a bitch, I'll choke you to death." (c) Picketers at a military funeral hold signs saying "Thank God for Dead Soldiers," "You're going to Hell," and "Semper Fi Fags." (d) None of the above.* The answer is (d). Surprised? As it turns out, since Chaplinsky the Supreme Court has declined to broaden the scope of the Fighting Words doctrine.  In each case cited above, the Court instead held that the speech was either protected by the First Amendment, or outside the reach of laws invalidated by doctrines such as vagueness or overbreadth.  So in a sense, the Court's establishment and subsequent repudiation of the Fighting Words doctrine reflects a distinct method of evaluating civil liberties--not foolish enough to believe they are limitless, but loathe to spell out limitations. Echoes of this can be found in the current discourse on the Trayvon Martin shooting; the media has focused on race, rather than the fact that the neighborhood watch captain was packing heat.  I would venture that the silence on this front stems from reluctance to engage on a Second Amendment issue in a country which cherishes its Bill of Rights.     Where does this leave us?  I'd say that on constitutional grounds, you are probably safe cursing out the next police officer that pulls you over for crossing the double yellow line. But suffice to say, I'd rather not be riding with you that day. * The cases cited in the quiz above are (a) Cohen v. California (1971); (b) Gooding v. Wilson (1972); and (c) Snyder v. Phelps (2011), involving the highly publicized protests by the Westboro Baptist Church at military funerals.   
...more
View all episodesView all episodes
Download on the App Store

By Ann Ching

  • 5
  • 5
  • 5
  • 5
  • 5

5

3 ratings