Fighting Words and the 1st Amendment
• Fighting Words – Fighting words are those deemed likely to immediately incite violence by listeners. An important requirement for an expression to constitute fighting words is that the threat of violence be immediate. This means that the subject-matter exception is determined by the physical presence and likely reaction of third parties.
⁃ Example: Many public presentations openly calling for violent activity by the crowd are limited or regulated; however, the same form of expression recorded and later distributed to listeners may not constitute fighting words. The difference is the immediacy of the threat of violence created by the presence of a crowd.
⁃ Discussion: Can you think of any activities in history that have been censored under the grounds that it is inciting immediate violence? Can you think of any examples of speech that have incited violence, but have been protected because the incitement was not immediate in the location of the speech?
⁃ Practice Question: Eric is a separatist and anti-government activist. He routinely calls for the succession of State B from the United States. He holds a rally in State B, during which he plans to deride the minority population in the state. Local authorities are worried about the rally resulting in violence. If the permit for the rally is denied because of these concerns and Eric challenges the denial in court, what facts will the court review in determining whether the denial is Constitutional? Would it matter if Eric plans to hold the rally in a small private venue, but the speech will be broadcast via a number of media sources?