Chaplinsky v. New Hampshire

Dismissing Chaplinsky's claim that his right to free exercise of his religion had been violated, Justice Murphy, writing for the unanimous Court, turned to the appellant's other First Amendment claim. The New Hampshire statute did not, the justices concluded, violate freedom of speech. The Court arrived at this 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 which has 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.

"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 scrutiny of 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 the first 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 has been modified since the decision was handed down in 1942. Chaplinsky was the last case to uphold a conviction for the use of fighting words against a public official. Edwards v. South Carolina (1963) introduced the notion of a "heckler's veto," a doctrine which states that mere threats cannot trump 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 communicative aspect 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 the peace for wearing a jacket bearing the legend "F*** the Draft" while standing in a courthouse. The Supreme Court overturned his conviction, finding that neither the "vulgar" language on his jacket nor its provocative message were outside the ambit of First Amendment protection.