Fighting Words and the 1st Amendment
Speech Not Protected by the 1st Amendment
Written by Jason Gordon
Updated at June 23rd, 2021
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Table of Contents
Fighting Words and the 1st AmendmentWhat Qualifies as Fighting Words? Discussion QuestionPractice QuestionAcademic ResearchFighting Words and the 1st Amendment
Fighting Words - Fighting words are those deemed likely to immediately incite violence by listeners.
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What Qualifies as Fighting Words?
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 Question
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?
- The civil rights protests concerning racial equality were often broken up or suppressed on the basis that the speech immediately incited violence. A documentary posted to YouTube that denigrated the prophet Muhammad resuled in rioting in various parts of the world. When asked by foreign leaders as to why this type of activity was allowed, then President Obama responded by citing the freedoms of the 1st Amendment. The speech incited violence, but it was indirect and not immediate - and thus, the speech was protected.
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?
- The court will examine the nature of the speech to determine whether it is protected. The obvious determination is whether this sort of speech incites violence. If the risk is very high, then this will have to be balanced against the extent of the speech being limited. If Eric is completely cut off from any forum, this is an extreme ban. If the speech is limited by time, location, and manner of delivery, it is less of a burden. It would certainly make a difference if the rally was to be held in a private location. This would mean that it is not a Government forum and not open to the public. In this arena, almost any form of speech is permissible. As such, denying a permit for a private rally would face far greater scrutiny than a rally on public property.