A primer on the “Fighting Words” doctrine, and whether it applies against political speech…
The simple answer is “not likely.”
We start from the premise of the First Amendment that all speech is protected unless the Supreme Court has created an exception. Exceptions:
- Incitement to immediate illegal action — like encouraging desertion from the Army, see Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566 (1919); but not a general abstract discussion of the moral necessity for resorting to violence, see Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969);
- Advocacy of the violent overthrow of the US government — Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L. Ed. 1138 (1925); Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951);
- Slander or libel;
- Pornography (particularly, these days, child pornography);
- Fighting words. 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. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
So “fighting words” must have three characteristics:
- “personally abusive epithets”
- “addressed to the ordinary citizen” (not spoken to a crowd)
- “inherently likely to provoke violent reaction” such as would cause the ordinary citizen to want to punch you in the nose.
According to the Virginia Court of Appeals, Va. Code §18.2-416 cannot be satisfied by hollering “Go fuck yourself” when the parties were at least 55 feet apart and separated by a chain link fence, because hollering that at that time wouldn’t likely lead to an immediate fight. Hershfield v. Commonwealth, 14 Va.App. 381, 417 S.E.2d 876 (1992). The limiting language in Hershfield suggests that the Court would not find “Fuck the cops” to be “fighting words,” at least not where it wasn’t directed at an individual. And yelling “Fuck the Klan” when you are separated from the Klan by two fences and a line of police officers probably wouldn’t qualify, either.
A jacket that says “Fuck the draft” doesn’t qualify. “While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not directed to the person of the hearer.” Cohen v. California, 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 ( 1971).
“Fighting words” have to be distinguished from words addressed to a hostile audience that might lead to the audience becoming violent. There is older precedent (from the 1950’s) that holds that speech that is so provocative as to lead to riot could not be protected, but in 1977 the American Nazi Party wanted to march in Skokie, Illinois. The case went up to the Supreme Court of the United States, then back to the Illinois Supreme Court, which held that the injunction prohibiting display of a swastika was not constitutional:
“Use of the swastika is a symbolic form of free speech entitled to first amendment protections. Its display on uniforms or banners by those engaged in peaceful demonstrations cannot be totally precluded solely because that display may provoke a violent reaction by those who view it. Particularly is this true where, as here, there has been advance notice by the demonstrators of their plans so that they have become, as the complaint alleges, ‘common knowledge’ and those to whom sight of the swastika banner or uniforms would be offensive are forewarned and need not view them. A speaker who gives prior notice of his message has not compelled a confrontation with those who voluntarily listen.
Skokie v. National Socialist Party, 69 Ill. 2d 605, 618 (1978).
Conclusion — no, there is no exception to the First Amendment that would seem to apply to the Klan.
