View source for Fighting words

{{Short description|Speech or writing intended to incite hatred or violence}}
{{for|the Canadian television series|Fighting Words (TV series)}}
{{more citations needed|date=May 2011}}

'''Fighting words''' are [[speech|spoken word]]s intended to provoke a retaliatory act of violence against the speaker. In [[United States constitutional law]], the term describes words that inflict injury or would tend to incite an immediate [[breach of the peace]].

== United States ==
The '''fighting words doctrine''', in [[United States constitutional law]], is a limitation to [[freedom of speech]] as protected by the [[First Amendment to the United States Constitution]].

In 1942, the [[Supreme Court of the United States|U.S. Supreme Court]] established the doctrine by a 9–0 decision in ''[[Chaplinsky v. New Hampshire]]''.<ref name=Chaplinsky /> It held that "[[insult]]ing or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate [[breach of the peace]]" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] ... have never been thought to raise any constitutional problem."

=== ''Chaplinsky'' decision ===
Walter Chaplinsky, a [[Jehovah's Witness]], had purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching that he was "a God damned [[racketeer]]" and "a damned [[fascism|fascist]]" and was arrested. The court upheld the arrest and wrote in its decision that:

{{blockquote|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. It has 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.| ''Chaplinsky v. New Hampshire''|1942<ref name=Chaplinsky>{{cite web|title=Chaplinsky v. New Hampshire|url= https://www.bc.edu/bc_org/avp/cas/comm/free_speech/chaplinsky.html |access-date=20 May 2018 |url-status=dead |archive-url= https://web.archive.org/web/20180504221233/http://www.bc.edu/bc_org/avp/cas/comm/free_speech/chaplinsky.html |archive-date=4 May 2018 |date=9 March 1942}}</ref>|source=}}

=== Post-''Chaplinsky'' ===
The Court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In ''[[Street v. New York]]'' (1969), the Court overturned a statute prohibiting [[flag desecration|flag-burning]] and verbally abusing the flag, holding that mere ''offensiveness'' does not qualify as "fighting words". In similar manner, in ''[[Cohen v. California]]'' (1971), Paul Robert Cohen's wearing a jacket that said "fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets".

In ''[[Brandenburg v. Ohio]]'' (1969), even speech such as "Bury the niggers" and "Send the Jews back to Israel," was held to be protected speech under the First Amendment in a [[per curiam decision|{{lang|la|per curiam|nocat=true}}]] decision. In addition, despite the speech being broadcast on network television it did not direct to incite or produce imminent lawless action nor was it likely to produce such action.

In 1972, the Court held that offensive and insulting language, even when directed at specific individuals, is not fighting words:
* ''[[Gooding v. Wilson]]'' (1972): "White son of a bitch, I'll kill you."<ref>{{cite court|url=https://supreme.justia.com/cases/federal/us/405/518/|reporter=U.S.|vol=405|opinion=518|litigants=Gooding v. Wilson|date=1972}}</ref>
* ''[[Rosenfeld v. New Jersey]]'' (1972): "mother fucking."<ref>{{cite court|url=https://supreme.justia.com/cases/federal/us/408/901/|reporter=U.S.|vol=408|opinion=901|litigants=Rosenfeld v. New Jersey|date=1972}}</ref>
* ''[[Lewis v. City of New Orleans]]'' (1972): "god damn mother fucking police."<ref>{{cite court|url=https://supreme.justia.com/cases/federal/us/415/130/|reporter=U.S.|vol=415|opinion=130|litigants=Lewis v. City of New Orleans|date=1972}}</ref>
* ''[[Brown v. Oklahoma]]'' (1972): "mother fucking fascist", "black mother fucking pig". Found constitutional because the "speech [may] have been anticipated by the audience."<ref>{{cite court|url=https://supreme.justia.com/cases/federal/us/408/914/|reporter=U.S.|vol=408|opinion=914|litigants=Brown v. Oklahoma|date=1972}}</ref>

In ''[[Collin v. Smith]]'' (1978) Nazis displaying swastikas and wearing military-style uniforms marching through a community with a large Jewish population, including survivors of German concentration camps, were not using fighting words.

''[[Texas v. Johnson]]'' (1989) redefined the scope of fighting words to "a direct personal insult or an invitation to exchange fisticuffs" in juxtapose to flag burning as symbolic speech.<ref>{{Cite web|url=https://www.law.cornell.edu/wex/fighting_words|title=fighting words|publisher=Legal Information Institute at Cornell Law School|access-date=November 14, 2022}}</ref>

In ''[[R.A.V. v. City of St. Paul]]'' (1992) and ''[[Virginia v. Black]]'' (2003), the Court held that [[cross burning]] is not 'fighting words' without intent to intimidate.

In ''[[Snyder v. Phelps]]'' (2011), respondents' counsel argued that the Court's definition of fighting words required immediacy, imminence, intent and proximity. Justice Ginsburg stated that the Court had rejected spreading the concept beyond words that immediately trigger an instinctive reaction.<ref>{{cite web|title=Snyder v. Phelps, oral argument|url=https://www.oyez.org/cases/2010-2019/2010/2010_09_751#argument|publisher=[[Oyez Project|Oyez]]|access-date=November 14, 2022}}</ref> The Court held that even "outrageous" and "hurtful speech" such as: "God Hates the USA/Thank God for 9/11", "America is Doomed", "Don't Pray for the USA", "Thank God for IEDs", "Thank God for Dead Soldiers", "Pope in Hell", "Priests Rape Boys", "God Hates Fags", "Fags Doom Nations", "You're Going to Hell," and "God Hates You" is to be considered public debate, particularly when conducted on public land, and must enjoy "special" First Amendment protection. Lone dissenting Justice [[Samuel Alito]] likened the protests of the [[Westboro Baptist Church]] members to fighting words and of a personal character, and thus not protected speech. The majority disagreed and stated that the protesters' speech was not personal but public, and that local laws which can shield funeral attendees from protesters are adequate for protecting those in times of emotional distress.

==Australia==
{{anchor|Crimes that prohibit offensive language in Australia}}
The Australian Constitution does not explicitly protect freedom of expression, but the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.<ref>{{cite web|url=https://www.humanrights.gov.au/freedom-information-opinion-and-expression |title=Freedom of information, opinion and expression &#124; Australian Human Rights Commission |publisher=Humanrights.gov.au |access-date=2017-06-30}}</ref>

In ''[[Nationwide News Pty Ltd v Wills]]'',<ref name="News v Wills"/> and ''[[Australian Capital Television Pty Ltd v Commonwealth]]'',<ref name="AC TV v Cth" /> the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in ''Unions NSW v New South Wales'' [2013] HCA 58.<ref name="Unions NSW v NSW">{{cite AustLII|HCA|58|2013|litigants=Unions NSW v New South Wales |parallelcite=(2013) 252 [[Commonwealth Law Reports|CLR]] 530 |courtname=auto}}.</ref>

In 2004, the High Court considered the meaning of a statutory offence of using insulting words in a public place.<ref>''Vagrants, Gaming and Other Offences Act 1931'' (Qld) s7(1)(d).</ref> Justices [[William Gummow|Gummow]] and [[Kenneth Hayne|Hayne]] held that in the context of the section, '"abusive" and "insulting" should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation'.{{r|Coleman v Power|p=77|q=paragraph 193 per Gummow and Hayne JJ.}} [[Michael Kirby (judge)|Judge Michael Kirby]] employed similar reasoning.{{r|Coleman v Power|p=87|q=paragraph 226 per Kirby J.}} [[Chief Justice of Australia|Chief Justice]] [[Murray Gleeson|Gleeson]] took a slightly different approach to the construction of the section, finding that:

<blockquote>It is open to parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur.{{r|Coleman v Power|p=24|q=paragraph 9 per Gleeson CJ.}}</blockquote>

Greenawalt argues that in the First Amendment context, the application of one part of the original Chaplinsky formula ('words likely to cause an average addressee to fight')<ref name=Chaplinsky /> is problematic in important respects:

<blockquote>The first ambiguity concerns the persons to be counted among potential addressees: everyone, only people to whom a phrase really 'applies', or all those likely to be angered by having the label applied to them? Someone of French origin reacts differently to being called a 'Polack' than someone of Polish origin. ... Another ambiguity is how an 'average addressee' is to be conceived ... [And], [c]an the same remark be punishable if directed at the one person able to respond and constitutionally protected if directed at people not able to match the speaker physically?<ref>Kent Greenawalt, 'Insults and Epithets: Are They Protected Speech?' (1990) 42 Rutgers Law Review 287, 296–7.</ref></blockquote>

===Offensive language that is considered criminal in Australia===
A number of criminal laws in Australia prohibit the use of offensive, obscene, abusive, insulting or indecent language in a public place.<ref>{{cite journal|url=http://search.informit.com.au/documentSummary;dn=162515219539617;res=IELHSS |title='Weeds of our own making': Language ideologies, swearing and the criminal law |last=Methven |first=Elyse |date=2016|volume=34|issue=2|journal=Law in Context|pages=117–130 [117]|ssrn=2996921}}</ref> One such example is section 4A of the ''Summary Offences Act'' 1988 (NSW), which prohibits the use of offensive language in, near or within hearing from a public place or school.<ref>''Summary Offences Act'' 1988 (NSW) {{cite web|url=https://www.legislation.nsw.gov.au/#/view/act/1988/25/part2/div1/sec4a|title=s4A Offenscive language |website=NSW Legislation}}</ref> The penalty for using offensive, indecent or obscene language in Australia ranges from a small fine (for example, $660 in NSW) to up to 6 months imprisonment.

Police in a number of Australian states and territories also have the power to issue on-the-spot fines (infringement notices) for offensive language.<ref>{{cite journal|url=http://www.austlii.edu.au/au/journals/UTSLRS/2014/13.html |last=Methven |first=Elyse |title='A Very Expensive Lesson': Counting the Costs of Penalty Notices for Anti-social Behaviour|journal=University of Technology Sydney Law Research Series |year=2014 }} (2014) 26(2) Current Issues in Criminal Justice 249. Retrieved 30 June 2017.</ref> Police commonly use these offences to target four-letter words (such as ''[[cunt]]'', or ''[[fuck]]'', and their derivatives) uttered towards them, or in their presence.<ref>{{cite journal|url=http://www.austlii.edu.au/au/journals/UTSLRS/2012/10.html |last=Methven |first=Elyse |title=Dirty words? Challenging the assumptions that underpin offensive language crimes|journal=University of Technology Sydney Law Research Series |year=2012 }} [2012] University of Technology Sydney Law Research Series 10. Retrieved 30 June 2017.</ref>

==Versus incitement==
[[Incitement]] is a related doctrine, allowing the government to prohibit advocacy of unlawful actions if the advocacy is both intended to and likely to cause immediate breach of the peace. In the United States, the modern standard was defined in ''[[Brandenburg v. Ohio]]'' (1969), where the Supreme Court reversed the conviction of a [[Ku Klux Klan]] leader accused of advocating violence against racial minorities and the national government. The Ohio statute under which the conviction occurred was overturned as unconstitutional because "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."<ref>Brandenburg v. Ohio, 395 U.S. 444, 448 (1969).</ref>

The difference between incitement and fighting words is subtle, focusing on the intent of the speaker. Inciting speech is characterized by the speaker's intent to make someone else the instrument of his or her unlawful will. Fighting words, by contrast, are intended to cause the hearer to react to the speaker.<ref>Guiora, Amos. ''Tolerating Intolerance: The Price of Protecting Extremism''. New York: Oxford University Press. 2013.</ref>

== See also ==
*[[Intimidation]]
*[[Trash talk]]
*[[Verbal aggression]]

==References==
<references>
<ref name="AC TV v Cth">{{cite AustLII|HCA|45|1992|litigants=[[Australian Capital Television v Commonwealth]] |parallelcite=(1992) 177 [[Commonwealth Law Reports|CLR]] 106 |courtname=auto}}.</ref>
<ref name="Coleman v Power">{{cite AustLII|HCA|39|2004|litigants=Coleman v Power |parallelcite=(2004) 220 [[Commonwealth Law Reports|CLR]] 1 |courtname=auto}}</ref>
<ref name="News v Wills">{{cite AustLII|HCA|46|1992|litigants=[[Nationwide News Pty Ltd v Wills]] |parallelcite=(1992) 177 [[Commonwealth Law Reports|CLR]] 1 |courtname=auto}}.</ref>
</references>

{{Profanity}}
{{US1stAmendment Freedom of Speech Clause Supreme Court case law|state=collapsed}}
{{wiktionary|fighting words}}

{{DEFAULTSORT:Fighting Words}}
[[Category:Speech crimes]]
[[Category:Profanity]]
[[Category:United States Free Speech Clause case law]]