Chaplinsky v. New Hampshire

Appellant
Walter Chaplinsky
Appellee
State of New Hampshire
Appellant's Claim
That a state statute prohibiting certain types of public speech violates theFirst Amendment guarantee of free speech.
Chief Lawyer for Appellant
Hayden C. Covington
Chief Lawyer for Appellee
Frank R. Kenison
Justices for the Court
Hugo Lafayette Black, James Francis Byrnes, William O. Douglas, Felix Frankfurter, Robert H. Jackson, Frank Murphy (writing for the Court), Stanley FormanReed, Owen Josephus Roberts, Harlan Fiske Stone
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
9 March 1942
Decision
Reasoning that the Constitution does not protect some "well defined and narrowly limited" types of speech, the Supreme Court unanimously upheld both the statute and Chaplinsky's conviction under it.
Significance
Chaplinsky introduced a two-tiered approach to free speech, in which so-called "fighting words" and certain other categories of speech are placed outside the protection of the First Amendment.
Walter Chaplinsky, a Jehovah's Witness, had attracted a large and unruly crowd as he distributed religious tracts in the streets of Rochester, New Hampshire. Warned by a city marshall that the crowd was becoming riotous, Chaplinskyhurled insults at the officer, calling him a "racketeer" and a "Fascist." Chaplinsky was convicted in municipal court of having violated a state ordinance against the use of abusive language in public. His conviction was affirmedby the New Hampshire Supreme Court, and he appealed to the U.S. Supreme Court.
Court Develops Two-Tiered Theory of the First Amendment
Dismissing Chaplinsky's claim that his right to free exercise of his religionhad been violated, Justice Murphy, writing for the unanimous Court, turned to the appellant's other First Amendment claim. The New Hampshire statute didnot, the justices concluded, violate freedom of speech. The Court arrived atthis conclusion by elaborating a two-tiered theory of the First Amendment.

[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of whichhas never been thought to raise any constitutional problem. These include thelewd and obscene, the profane, the libelous, and the insulting or "fighting"words--those which by their very utterance inflict injury or tend to incitean immediate breach of the peace.

"Fighting words," like obscene ones, Murphy went on to say, contribute nothing in the way of ideas, and any value they might have is outweighed by an interest in social order and morality. This was an important distinction, for speech that is protected by the First Amendment is immune to government scrutinyof its content. Here, Murphy asserted, the words had essentially no content,but are only meant to provoke an immediate and violent reaction. In a sense,they were much like those that former Justice Oliver Wendell Holmes described in his famous dissent in Schenck v. United States (1919), one of thefirst Supreme Court opinions to attempt an interpretation of the First Amendment. Chaplinsky's epithets, like the words of a man shouting fire in a theater, presented "a clear and present danger" to public order.
Unlike Holmes' "clear and present danger" doctrine, which remains a part of First Amendment dogma, the "fighting words" analysis in Chaplinsky hasbeen modified since the decision was handed down in 1942. Chaplinsky was the last case to uphold a conviction for the use of fighting words againsta public official. Edwards v. South Carolina (1963) introduced the notion of a "heckler's veto," a doctrine which states that mere threats cannottrump free speech rights. In Cohen v. California (1971), the Court went further, stating that in order to override First Amendment protections, "fighting words" must provoke an immediate hostile reaction. What is more, the Cohen Court recognized that even threatening words have a communicativeaspect that is worth protecting.
Cohen illustrates the erosion of Chaplinsky's double standard on free speech. In the later case, a young man was convicted of disturbing thepeace for wearing a jacket bearing the legend "F*** the Draft" while standing in a courthouse. The Supreme Court overturned his conviction, finding thatneither the "vulgar" language on his jacket nor its provocative message wereoutside the ambit of First Amendment protection.
Related Cases

• Schenck v. United States, 249 U.S. 47 (1919).
  
• Edwards v. South Carolina, 372 U.S. 229 (1963).
  
• Cohen v. California, 403 U.S. 15 (1971).
  
• Bethel School District v. Fraser, 478 U.S. 675 (1986).

Fighting Words
Although the U.S. Supreme Court has extended considerable constitutional protection to dissident speech, it recognized several areas of expression which fall outside First Amendment protection. These areas of expression include words which are lewd, obscene, profane, libelous, and "fighting." "Fighting words" are so offensive and inflammatory they will likely provoke a violent response from the individual being addressed. These words are calculated to inflict injury and incite an immediate breach of peace. Any benefit derived from them is clearly outweighed by repulsive repercussions to social order and morality.
Fighting words are words aimed intentionally at a specific individual ratherthan a group. The circumstances under which such speech is uttered is also important in identifying when speech is constitutionally unprotected.
If a municipality desires to forbid a particular kind of speech considered tobe "fighting," the resulting law must be narrowly written. It must not include expressions which are merely offensive to someone, hurt their feelings, orcause resentment. Also, the law may not prohibit words based only on a particular bias, such as involving race or religion. The law could be judged unconstitutionally discriminatory. A prohibition must, therefore, outlaw all "fighting words."
Sources
Biskupic, Joan and Elder WittGuide to the U.S. Supreme Court. (Washington, DC: Congressional Quarterly, 1997).