Aditi Mukherji, JD
Fred Phelps, the founder of the Westboro Baptist Church — the fire-and-brimstone congregation known for picketing military funerals with anti-gay signs — died late last Wednesday at the age of 84, The Washington Post reports.
His congregation’s extreme hate-mongering prompted a U.S. Supreme Court case on the exercise of free speech — specifically, fighting words. In an 8-1 ruling, the Court ruled that Westboro’s anti-gay protest at a soldier’s funeral did not rise to the level of fighting words and was therefore protected free speech.
What are fighting words?
Origin of Fighting Words
The origins of the doctrine trace back to the U.S. Supreme Court case Chaplinsky v. New Hampshire. In 1942, Walter Chaplinsky, a Jehovah’s Witness, was distributing religious literature in Rochester, New Hampshire. People were getting restless with his activities. But when confronted, he responded: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
The Court ruled that speech was unprotected. Along with lewd, obscene, profane, and libelous speech, “insulting or ‘fighting’ words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” fall outside of the scope of the First Amendment, the Court ruled.
Current State of Fighting Words
In a series of cases that followed, the Supreme Court eroded its ruling in Chaplinsky and limited the fighting words doctrine, to the point where it’s questionable if it even exists anymore.
The final nail in the coffin for fighting words was the Court’s decision in Gooding v. Wilson, according to the Foundation for Individual Rights in Education. While assaulting a police officer, Johnny Wilson shouted, “White son of a bitch, I’ll kill you.” “You son of a bitch, I’ll choke you to death.” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” The Court ruled this constituted vulgar and offensive speech and such speech is protected by the First and Fourteenth Amendments.
Chaplinsky is formally alive but of little vitality. If the fighting words doctrine has any life left (many argue it does not but still needs a proper burial), the Court has narrowed it to only include abusive language, exchanged face to face, which would likely provoke a violent reaction. After all, even the vitriolic sayings of Fred Phelps and the Westboro Baptist Church were not considered fighting words.
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What Are ‘Fighting Words’?