Introduction

One of the unprotected categories of speech consists of so called "fighting words," that is, words which are likely to make the person to whom they are addressed commit an act of violence. Fighting words receive no First Amendment protection, because, like other unprotected categories (i.e. defamation, obscenity, etc.) They are not normally part of any dialogue or exposition of ideas. But, the Supreme Court today keeps this exclusion within narrow limits.

The fighting words doctrine originated in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Chaplinsky ruling defined fighting words rather broadly. This doctrine included words which are likely to incite an immediate fight and words which inflict injury.

The Court realized soon after Chaplinsky, "that giving a broad scope to the fighting words doctrine would lead to the depletion of important First Amendment protections" (Emanuel 458). Therefore, the fighting words doctrine has since been limited in many ways.

In the case of Terminiello v. Chicago, 337 U.S. 1 (1949), to constitute fighting words it was no longer enough that the speaker's words made the listeners angry. Rather, an incitement to violence was now required. The appellant, Terminiello made a speech that consisted of vicious and criticizing statements about some political and religious groups. The crowd was upset by his comments and could not be controlled by the police. The police then arrested Terminiello for breach of the peace. The Supreme Court overturned his conviction because they concluded that:

The vitality of civil and political institutions in our society depends on free discussion. Free speech is supposed to incite dispute and it is often provocative and challenging while it presses for acceptance . . . The most valuable expression may well be that which, because it is provocative and challenging, produces these emotions (337 US 1,4, 1949).

Therefore, a state may not punish a person for arousing a crowd to act violently simply by initiating a public dispute. This is similar to the idea known as the "heckler's veto" (Emanuel 459). That is, when members of audience gain the right to silence any speaker with whose ideas they did not agree.

Edwards v. South Carolina, 372 U.S. 229 (1963), is similar to Terminiello in that only if specific words or acts by the speaker threaten violence, will the fighting words doctrine apply. Edwards is a case where 187 black students demonstrated at the State House, before a crowd of 300; the Supreme Court reversed their breach of peace conviction on the grounds that there was no violence or specific threat of violence from the demonstrators or crowd.

Fifteen years later, in Skokie v. National Socialist Party, 373 N.E. 2d 21 (Ill. 1978), "an especially strong state case disallowed a ‘fighting words' rational even in circumstances of extreme provocation and targeted insult, despite Chaplinsky" (Van Alstyne 757). In this case, a Nazi group planned to demonstrate in front of Skokie Village Hall. Skokie is a predominantly Jewish community, and about 5,000 of its residents were survivors of concentration camps. Just before the scheduled demonstration, the village enacted several ordinances designed to neutralize the demonstration, including one forbidding the dissemination of any materials which promote or incite racial or religious hatred. "The Court argued that there was simply no principled way of distinguishing between this situation and speech that stirs listeners to unrest or anger, speech which was explicitly protected in cases like Terminiello" (Emanuel 462).

In Hustler Magazine v. Falwell, 485 U.S. 46 1988, Hustler, a pornographic magazine, portrays Reverend Jerry Falwell having incestuous drunken sex in an outhouse with his mother. "From Falwell's perspective, his lawyers argued based on Chaplinsky and Beauharnais v. Illinois, 343 U.S. 250 (1952), that Flynt's type of speech in Hustler forms ‘no essential part of the exposition of ideas, and, because it is vulgar, offensive, obscene, and distressing, it is undeserving of constitutional shelter'" (Silver, Falwell v. Flynt). Beauharnais was a criminal libel case. The defendant Beauharnais was president of the racist White Circle League. He asked the Court not to hold him guilty for the leaflet he wrote asking the mayor of Chicago to "halt the further encroachment, harassment, and invasion of white people, their property, neighborhoods, and persons, by the Negro" (Smolla 187). Beauharnais contended his leaflets must produce a clear and present danger, or substantive evil for him to be guilty. The Court rejected this on the grounds that this leaflet was not protected speech, and he was convicted.

In this paper we will describe the evolution of some of the more important decisions relevant to fighting words and offensive speech. Starting with the Chaplinsky doctrine in 1942, we traced the Supreme Court's decisions that affected this original standard. Following Chaplinsky, we moved on to Cohen v. California, 403 U.S. 15 (1971), Hess v. Indiana, 414 U.S. 105 (1973), R.A.V. v. City of St. Paul, 112 S. Ct. 2538 (1992) and Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993). These cases, combined with those preciously discussed, will combine to show how the Court's reasoning has materialized over the past fifty years.

Chaplinsky v. New Hampshire

Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942) is the benchmark case for "fighting words" and "offensive speech." Chaplinsky was a member of the Jehovah's Witnesses sect. Chaplinsky was distributing the literature of his sect on the streets of Rochester, New Hampshire, on a busy Saturday afternoon. Many local citizens complained to the City Marshal that Chaplinsky was denouncing all religion as a "racket." The Marshal told the crowd that Chaplinsky's acts were lawful, and then warned Chaplinsky of the crowd's restlessness. A little later, a disturbance occurred, and a traffic officer escorted Chaplinsky to the police station, although he did not inform him he was under arrest. On the way they encountered the Marshal again who repeated his earlier warnings to Chaplinsky. This is when Chaplinsky replied by saying to the Marshal, "You are a God damned racketeer" and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists."

Chaplinsky was convicted in the municipal court of Rochester, New Hampshire for violation of Chapter 378, Section 2, of the Public Laws of New Hampshire: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business or occupation." Chaplinsky was found guilty in the Superior Court of New Hampshire, and the conviction was affirmed by the Supreme Court of New Hampshire. The appellant claimed that the New Hampshire statute was invalid under the Fourteenth Amendment because it placed an unreasonable restraint on freedom of speech, press, and worship, and because it was vague and indefinite. These contentions were all overruled, and the case went to the Supreme Court of the United States on appeal.

The Court held that this case dealt solely with speech, and that the right of free speech is not absolute at all times and under all circumstances. "There are narrow classes of speech which prevent language which is lewd and obscene, profane, libelous, and the insulting or ‘fighting' words which by their utterance inflict injury or tend to incite an immediate breach of the peace" 315 U.S. 568, 572 (1942). Furthermore, such utterances are not part of any exposition of ideas, and carry such little social value that any truth that may be derived is outweighed by the social interest in order and morality. Moreover, citing Cantwell v. Connecticut, 310 U.S. 296, 309, 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352 (1940), "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument."

Justice Murphy delivered the opinion of the Court. He makes note that the New Hampshire statute has two provisions. The first relates to words or names addressed to another in a public place, while the second refers to noises and exclamations. The Court limited their ruling to the first provision of the statute. The state court said the statute's purpose was to preserve the public peace, no words being "forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually the remark is addressed" 315 U.S. 568 (1942). The test that was adopted examined what men of common intelligence would understand to be words likely to cause an average addressee to fight. Furthermore, derisive and annoying words fall within the statute when they excite the addressee to a breach of the peace. The statute prohibits words likely to cause a breach of peace by the addressee, and words whose speaking constitute a breach of the peace by the speaker. Such words include ‘fighting' words likely to cause violence, and other disorderly words, including profanity, obscenity, and threats.

The Court concluded that the narrow scope of the statute did not contravene free expression. Again, citing Cantwell, the statute is limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Furthermore, the Court found that the application of the statute to the facts disclosed by the record does not substantially nor unreasonably impinge upon the privilege of free speech. The appellant's speech calling the Marshal "damn racketeer" and "damned fascist" are likely to cause retaliation from the average person, and cause a breach of the peace. Therefore, for the above reasons, the Court ruled that the statute as applied does not violate the Fourteenth Amendment.

Since Chaplinsky, the Supreme Court has narrowed and clarified the scope of the fighting words doctrine. The Court has limited the fighting words definition so that it now only includes words which incite a breach of the peace. Finally, the Court has held that fighting words must be "directed at the person of the hearer" 310 U.S. 296, 309 (1940). The Court implemented this narrow test for the many ‘fighting words' cases that followed.

Cohen v. California

In 1971, another ‘fighting words' case reached the Supreme Court of the United States. Cohen v. California, 403 U.S. 15 (1971), involved a 19-year-old department store worker named Paul Cohen who expressed his opposition to the Vietnam War by wearing a jacket into the Los Angeles County Courthouse which read "FUCK THE DRAFT. STOP THE WAR." Cohen was convicted in the L.A. municipal court for violating part of the California Penal Code which prohibits "maliciously and willfully disturbing the peace of any neighborhood or person by offensive conduct." The Court of Appeal of California, Second Appellate District affirmed the conviction. The Court of Appeal held that "offensive conduct" means "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace." Furthermore, "it was certainly reasonably foreseeable that such conduct might cause others to rise up to commit a violent act against the person of the defendant or attempt to forcibly remove his jacket." 1 Cal. App. 3d, at 99-100, 81 Cal. Rptr., at 506.

Cohen's claim in the lower state courts, as well as in the Supreme Court, was that the statute infringed his rights to freedom of expression guaranteed by the First and Fourteenth Amendments of the Constitution. To test this claim the Court looked at whether California can remove, "as offensive conduct," a saying from the public discourse, based on the idea that its use is inherently likely to cause violent reaction, or upon a more general assertion that the states, acting as guardians of public morality, may properly remove the offensive word from the public vocabulary. The Court reversed the judgment of the lower courts, and ruled in favor of Cohen.

The Court held that the fighting words doctrine set forth in Chaplinsky is not applicable in this case. Citing the rule in Cantwell, Cohen's speech was clearly not "directed to the person of the hearer." Moreover, no individual actually or likely to be present could reasonably have regarded the words on Cohen's jacket as a personal insult, and there is no showing that the jacket caused violent reaction nor had such intent.

Justice Harlan delivered the opinion of the Court. Citing Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. Moreover, the Court has recognized that "we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech (Van Alstyne 153)." Therefore, the Court believed that the people present in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes (Van Alstyne 153). Moreover, it is held that the fact that some unwilling listeners in this public building may have been exposed to Cohen's jacket, does not justify Cohen's breach of peace conviction.

Cohen's speech, at most reflects an "undifferentiated fear or apprehension of disturbance which is not enough to overcome the right to freedom of expression." Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 508 (1969). Furthermore, the Court feels that the principle contended by the state is inherently boundless. Harlan recognizes the four-letter word in question is distasteful to many, however, "one man's vulgarity is another's lyric." For these reasons, the Court believes that because governmental officials cannot make distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual (Van Alstyne 156).

Justice Frankfurter has said, "one of the prerogatives of American citizenship is the right to criticize public men and measures - and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation." Baumgartner v. U.S., 322 U.S. 665, 673-674 (1944). Furthermore, "the forbidding of particular words runs the substantial risk of suppressing ideas. This type of censorship only leads to banning the expression of unpopular views, and holds little social value" (Van Alstyne 156). In sum, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this four-letter expletive a criminal offense.

Hess v. Indiana

Two years after the Cohen decision, another fighting words case came before the Court. This was the case of Hess v. Indiana, 414 U.S. 105 (1973). The appellant, Gregory Hess, was involved in an anti-war demonstration on the campus of Indiana University. During the demonstration, 100-150 of the demonstrators moved onto a public street blocking traffic. The demonstrators failed to respond to verbal directions from the sheriff and his deputies to clear the street, but did move to the side of the street when the sheriff and deputies marched up the street toward the demonstrators. Hess was on the side of the street, facing the crowd, when the sheriff heard him say ‘fuck' as he passed. The sheriff described the utterance as loud, and immediately arrested Hess, charging him with disorderly conduct. Witnesses claimed that Hess was speaking as loud as the rest of the crowd, and was not trying to incite the crowd to get back into the middle of the street. Rather, witnesses claim Hess was saying, "We'll take the fucking street later (or again)."

The City Court convicted Hess, and the Indiana Superior Court, and the Indiana Supreme Court both affirmed Hess' conviction based on their finding that Hess' statement "was intended to incite further lawless action on the part of the crowd in the vicinity of the appellant and was likely to produce such action" (Van Alstyne 150). Hess claimed that his conviction should be reversed because the statute is unconstitutionally vague, Connaly v. General Construction Co., 269 U.S. 385 (1926) because the statute is overbroad in that it forbids activity that is protected under the First and Fourteenth Amendments, Gooding v. Wilson, 405 U.S. 518 (1972), and because the statute as applied here, abridged his constitutionally protected freedom of speech, Terminiello.

The case resulted in a Per Curiam opinion. Indiana's disorderly conduct statute was applied in this case to punish only spoken words. Furthermore, citing Gooding, "the constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech" (Van Alstyne 149). Hess' speech, it is ruled by the Court, does not fall within these "limited classes." Moreover, the Court rules that Hess' speech cannot withstand scrutiny under the Chaplinsky "fighting words" doctrine. Citing Cantwell and Cohen, the Court rules that the State could not punish this speech as "fighting words" because Hess' speech was not personally directed at any particular group or person.

The Court also found that there was no evidence to indicate that Hess' speech amounted to a public nuisance where privacy interests were invaded. This followed the rule in Cohen that "the ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is ... dependant upon showing that substantial privacy interests are being invaded in an essentially intolerable manner" (Van Alstyne 150). Furthermore, under the Court's decisions, "the constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). Finally, since Hess' speech was not directed at any person or group of persons, it cannot be said that he was advocating any action.

Rankin v. McPherson

In 1987, the Supreme Court heard the civil case of Rankin v. McPherson, 483 U.S. 378 (1987). The appellant in this case, Constable Rankin, the Constable of Harris County, Texas, fired Ardith McPherson, the appellee. Ms. McPherson was a 19 year old clerical deputy who worked in the Constable's office. She worked in a private room with no telephone isolated from the public and her duties were limited strictly to clerical functions. On March 30, 1981, McPherson and fellow employees heard on the office radio of the assassination attempt on the President of the United States, Ronald Reagan. After hearing the report, McPherson engaged in a conversation with co-worker (and boyfriend) Lawrence Jackson. The ensuing conversation given by McPherson in uncontroverted testimony revealed that she said she felt "that (the assassination) would happen sooner or later." She also said that if "they go for him again, I hope they get him." This final remark, made by McPherson was overheard by a deputy constable, who McPherson did not know was in the room at the time. The Constable Rankin found out about this remark and he confronted McPherson. She admitted that she did in fact make the statement, and she said "but I didn't mean anything by it." Subsequently, Constable Rankin fired McPherson anyway.

McPherson sued Rankin in U.S. District Court claiming that the State may not dismiss an employee on the basis of that employee's constitutionally protected speech. McPherson won her suit in District Court, and Rankin appealed to the U.S. Court of Appeals, where he maintained the same claim. His counter-claim, as he so cleverly states, is that no law enforcement agency is required by the First Amendment to allow its employees to "ride with the cops and cheer for the robbers." Rankin lost in his appeal to the U.S. Court of Appeals and filed an appeal to the U.S. Supreme Court. They granted certiorari.

Pickering and Connick v. Myers, 461 U.S. 138, 140 (1983), established the Court's standard test to determine whether a public employee has been discharged for improper speech. The speech requires "a balance between the interests of the [employee], as a citizen, in commenting upon matters pf public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." The first side to this balance is whether McPherson's speech can be "characterized as constituting speech on a matter of public concern." Connick, 461 U.S., at 146. The Court clearly decided her speech was a matter of public concern.

The second part of the balancing act is whether the State discharged McPherson on legitimate grounds. Such grounds would have to support the fact that her speech prohibits the employers providing of public services. It was Rankin's contention that McPherson's speech created unrest within the office, and this speech constituted fighting words.

In the Court's opinion, delivered by Justice Marshall, her speech did not prohibit the efficient functioning of the office. This tipped the scale in favor of McPherson, and the lower courts decision was affirmed. Justice Marshall reasoned that her speech was a private conversation that took place in an area with no public access. Furthermore, McPherson serves no confidential, policymaking, or public contact role. Therefore, the employee's speech serves a minimal threat to the agency's successful functioning.

There was one concurring opinion submitted by Justice Powell. Powell states that in his view, the employer's interests would have to be so great in order to justify punishing an employee in the case of private speech, like the one made by McPherson that is so common for all level in the workplace. Furthermore, McPherson had no intention of anyone hearing or acting upon her speech that was a private (or so she thought) conversation.

Justice Scalia joined by the Chief Justice, Justice White, and Justice O'Connor dissents. He feels that her speech does not meet the threshold requirement of Pickering. This is because her speech is not on a matter of public concern. Furthermore, Scalia says that the issue in this case is not whether Rankin's interest in discharging McPherson outweighed her First Amendment rights, but whether his interest in preventing expression of such statements in his agency outweighs her First Amendment rights in making the statement. A law enforcement agency does after all have reason to not allow such expression.

R.A.V. v. City of St. Paul

After Hess, the Supreme Court took a 20 year break from hearing a case that involved the unprotected category of speech, fighting words. In 1992 the Court heard R.A.V. v. City of St. Paul 112 S. Ct. 2538 (1992). On June 21, the appellant and several other teenagers allegedly built a crude cross made from broken chair legs. They then burned it in the yard of a black family that lived across the street from where the appellant was staying. One of the two laws that the teens were charged with breaking was the St. Paul Bias-Motivated Crime Ordinance. This statute provides that

Whoever places on public or private property a symbol, object, appellation, characterization, or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

The trial court granted a motion for appellant's argument that the St. Paul ordinance was substantially overbroad and impermissibly content-based, thereby making it invalid under the First Amendment. The Minnesota Supreme Court reversed. They did so on the grounds that the modifying phrase in the ordinance "arouses anger . . . in others" limited the scope of the statute to conduct that is proscribed as fighting words. The definition of fighting words the Court uses is "conduct that inflicts injury or tends to incite violence" (Van Alstyne 259). The U.S. Supreme Court then granted certiorari. The Appellant maintained the claim that the St. Paul ordinance is overly broad and content-based. The State claimed the speech that the appellants were held accountable for falls under what the court has deemed fighting words, and outside of the constitutional protection of the First Amendment. Furthermore, the state claims that the ordinance is narrowly tailored in order to serve compelling state interests. These interests particularly focus on ensuring "basic human rights to members of groups that have historically been subjected to discrimination" (Van Alstyne 264).

Justice Scalia delivered the opinion of the Court. In the decision, Scalia accepts, arguendo that this case falls under the fighting words doctrine. The Court ruled that assuming that the law regulated fighting words, as the Minnesota Supreme Court decided, it unconstitutionally proscribes the speech based on content. Thus, the Court ruled in favor of R.A.V., reversing the judgment of the Minnesota Supreme Court.

The Court decided that the Government may not make a law that restricts speech condoned as fighting words on the basis of the speech's content. Justice Scalia wrote that when fighting words are prohibited in a manner that some fighting words are permitted and some are not, the prohibition is not protected by the First Amendment. The St. Paul ordinance did just this, thus it breached the First Amendment with its content-discriminatory language.

As to the claim that the St. Paul ordinance serves a compelling state interest, the Court ruled that "... the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids" (Van Alstyne 264).

Justice White, joined by Blackmun, and O'Connor concurred in the judgment. Stevens joins in this concurrence with the exception to Part I(A). Justice White argued that the St. Paul ordinance is overbroad because it criminalizes expression protected by the First Amendment. The Minority opinion wrote that while the Minnesota Supreme Court drew on Chaplinsky's standard of fighting words, they did not prove that the speech in this case fell under the precedent of Chaplinsky. Because it does not fall under this precedent of unprotected speech, the Minnesota statute is thus overbroad.

The minority also argued that the Court unnecessarily went out of its way in order to prove that law makers may not regulate some fighting words more strictly than others based on content. Furthermore, they argue that they majority is setting forth a new First Amendment principle. This is that the prohibition of constitutionally restricted speech cannot be under inclusive. In other words, this Minnesota provision does not allow certain types of proscribable speech, but not all proscribable speech. The minority claims that this is an argument which protects some fighting words, but not others (Van Alstyne 265). The majority answered this claim with the argument that they are not restricting the "‘under inclusiveness' limitation, but a ‘content discrimination' limitation upon a State's prohibition of proscribable speech" (Van Alstyne 261).

Wisconsin v. Mitchell

The next case where the Court had to define the legal limits of unprotected First Amendment speech fighting words was in the case Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993). The appellee, Todd Mitchell, was a man whose sentence for aggravated battery was enhanced due to the fact that he intentionally selected his victim based on the victim's race.

In the Circuit Court for Kenosha County, Mitchell was found guilty by jury of aggravated battery and a provision of Wisconsin law that permits enhancement of the maximum penalty for an offense. This penalty-enhancement statute can be implemented whenever the defendant "[i]ntentionally selects the person against whom the crime is committed because of race, religion, color, disability, sexual orientation, national origin or ancestry of that person" (Van Alstyne 271). Mitchell lost postconviction relief in Circuit Court. He appealed to the Wisconsin District Court of Appeals on the grounds that the Wisconsin penalty enhancement provision violates the First Amendment. The Court of Appeals rejected his challenge, but the Supreme Court of Wisconsin reversed. The Supreme Court of Wisconsin found that "[t]he statute punishes ‘because of' aspect of the defendant's selection, the reason the defendant selected the victim, the motive behind the selection." And under R.A.V. "the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees" (Van Alstyne 271-272). The United States Supreme Court granted certiorari and reversed the decision of the Wisconsin Supreme Court.

On October 7, 1989, a group of black men and boys, including the appellee, Mitchell, gathered at an apartment building in Kenosha, Wisconsin. Some members of the group discussed a scene from the movie "Mississippi Burning" where a white man beats a praying black man. Mitchell proceeded to ask the group "Do you all feel hyped up to move on some white people?" Shortly thereafter, a young white boy approached the group on the opposite side of the street. Mitchell said "You all want to fuck somebody up? There goes a white boy; go get him ." The boys then ran at the boy and beat him severely and stole his sneakers. The boy was rendered unconscious in a coma for 4 days.

The appellant claims that the provision of Wisconsin law does not punish bigoted thought. Instead, it only punishes conduct. Citing United States vs. O'Brien, 391 U.S. 367, 376 (1968), physical assault cannot by any means be considered expressive conduct protected by the First Amendment. The appellee claims that the penalty-enhancement statute is invalid because it punishes a discriminatory motive or reason for acting. Furthermore, he claims the statute is overbroad. In this new realm of Constitutional law, the Court had to decide whether speech instigating a bias-motivated hate crime is subject to penalty enhancement, or if such a provision is prohibited by the First and Fourteenth Amendment.

As mentioned earlier, the Court reversed the decision of the Wisconsin Supreme Court, and the case was remanded for further proceedings not inconsistent with this opinion. The decision effectively said that the State has an adequate to explanation to redress the perceived harms of bias-motivated crimes likely to inflict emotional harm for its victims. Moreover, the Court found that community unrest is an adequate explanation for the penalty-enhancement provision.

Chief Justice Rehnquist delivered the opinion of the Court. Citing R.A.V., the Court said that the speech classified as fighting words was protected because the St. Paul law violated the Court's content-based restriction. In this case however, the statute is aimed at conduct (not expression) and this is unprotected by the First Amendment. The Court then handles the appellant's claim that this statute is overbroad and suppresses a Wisconsin citizen's unpopular views, for fear that if he later commits a crime, these previous expressions of speech can make the individual eligible for penalty-enhancement. The Court says that this reasoning is simply too speculative to find the law unconstitutional. Additionally, the First Amendment does not prohibit speech as a means of establishing evidence for the elements of a crime or to prove motive or intent. Evidence of a person's previous speech is usually admitted in criminal trials to determine relevancy and reliability as well as intent.

In Haupt v. U.S., 330 U.S. 631 (1947), the Court rejected a similar contention as the one made by Mitchell. In Haupt, the government introduced conversations taken prior to the indictment that consisted of treasonous statements made by Haupt in order to show the motive behind his treasonous actions. In this case there were no concurring or dissenting opinions.

Conclusion

With the exception of the last case (Mitchell) it is obvious that the fighting words doctrine is slowly losing it's precedential value as the Court is moving towards allowing more freedom of individual expression. In Chaplinsky, the Court concluded that "lewd, obscene, profane, libelous, and fighting words were not protected under the Constitution." (315 U.S. 568, 572, 1942). As shown, this rule has changed over time, as evidenced by the decisions of Cohen through Mitchell. We would like to conclude by showing how this rule, has been applied in other First Amendment areas.

First, the Court has tightened up its libel standard, demonstrated in the case of New York Times v. Sullivan 376 U.S. 254 (1964). The Court stated in this case that a "public official may not claim a libel judgment against anyone who criticizes his official conduct" (Van Alstyne 195). This was a major breakthrough for the freedom of the press, because for the first time the press received the actual protection it needed in order to report the news without the fear of being sued by the government. The Court further strengthened the press' rights in the case of Time v. Hill,335 U.S. 374 (1966) by stating that "When a public interest involves a private person, then the press has a First Amendment right to report the news" (Van Alstyne 207).

The fighting words doctrine has been limited to require actual lawless action. The precedent reached in the cases of Terminiello, Edwards, Brandenburg and Yates v. U.S., 354 U.S. 298 (1957), was that the government may only punish a speaker when his speech incites "imminent lawless action" (Van Alsytne 146).

Cantwell and Terminiello have limited the fighting words doctrine, so that the speech must result in a direct confrontation and violent reaction. In Cantwell, a Jehovah's Witness was distributing religious literature that attacked the Catholic religion. Appellant Cantwell, handed two Catholic men a book that attacked the Catholic religion. The two men were infuriated and demanded that Cantwell leave the premises. Cantwell abided, and no violent confrontation took place. The Court decided that since there was no direct aggressive confrontation, Cantwell had to be released because a state may not "suppress the communication of views when those views are undesirable"(Van Alstyne 1021).

Within the last 30 years, the Court has recognized symbols as being protected speech under the First Amendment. Court decisions have continually stated that symbols can not be suppressed under the fighting words doctrine.

The first case that recognized symbols as protected speech was in Tinker. Here, the Court upheld a group of students' rights to wear black armbands on school property in order to protest Vietnam. The Court stated that "the wearing of armbands are closely akin to pure speech which is entitled to comprehensive protection under the Constitution" (Van Alstyne 280).

This precedent was further strengthened in Street. Street, a black man, was upset that civil rights leader James Meredith was shot in the state of Mississippi. After he heard the news, Street took his privately owned flag and set it on fire on a public street corner. As the flag was burning he was yelling that "we don't need no damn flag if they let that happen to Meredith" 394 U.S. 576 (1971). The Court reversed Street's conviction by stating that "any action taken with respect to the U.S. flag is expressive, and people have a First Amendment right to protest" (89 Sct. 1354,1365). The Court concluded that the Fourteenth Amendment prohibits criminal sanctions against anyone advocating for a peaceful change. Flag burning is not in the same class as fighting words because it expresses an idea that cannot be prohibited because it is offensive. In R.A.V., the Court stated that a St. Paul ordinance prohibiting swastikas and cross burning was unconstitutional. The ordinance was content based, and "content based restrictions are held to be unconstitutional" (Van Alstyne 260).

The Court decided that symbols are protected speech and the government must have a compelling interest in order to prohibit such speech. In order for this speech to pass the Court's standard, it has to be content neutral.

The only precedent that still exists from the Chaplinsky doctrine is obscenity. In 1957, the Court stated in Roth that "obscenity is not protected under the Constitution" (Van Alstyne 165). The court limited this classification in Miller v. California, 413 U.S. 15 (1973). In Miller the Court held that under the Roth definition, ". . . it must be established that (a) the dominant theme of the material taken as a whole appeals to a prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value" (Van Alstyne 807-808). With this definition, the Court declared that some pornography was acceptable in the marketplace of ideas, as long as there is clearly an expression of an idea.

Our group concludes that the recent decisions of the Court, allowing for more individual expression, has eroded the Chaplinsky doctrine to a nonexistent standard. With changing times and changing Supreme Court Justices, it will be interesting to see which fighting words standard is adopted.

Works Cited

Baumgartner v. U.S., 322 U.S. 665, 673-674 (1944)

Beauharnais v. Illinois, 343 U.S. 250 (1952)

Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)

Cantwell v. Connecticut, 310 U.S. 296, 309, 310 S., 60 S.Ct. 900, 906, 128 A.L.R. 1352 (1940)

Chaplinsky v. New Hampshire, (315 U.S. 568, 1942)

Cohen v. California, 403 U.S. 15 (1971)

Connally v. General Construction Company, 269 U.S. 375, (1926)

Connick v. Myers, 461 U.S. 138, 140 (1983)

Edwards v. South Carolina, 372 U.S. 229 (1963)

Emanuel, Steven. Constitutional Law. New York: Emanuel Law Outlines Inc., 1990.

Gooding v. Wilson, 403 U.S. 518, (1972)

Haupt v. U.S., 330 U.S. 361 (1947)

Hess v. Indiana, 414 U.S. 105 (1973)

Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

Miller v. California, 413 U.S. 15 (1973)

New York Times v. Sullivan, 376 US 254 (1964)

Organization for a Better Austin v. Keefe, 402 U.S. 415, (1971)

R.A.V. v. City of St.Paul, 112 S. Ct. 2538 (1992)

Skokie v. National Socialist Party, 373 N.E. 2d 21 (Ill. 1978)

Smolla, Rodney A. Jerry Falwell v. Larry Flynt. Chicago: University of Illinois Press, 1988. Street v. New York, 394 U.S. 576 (1971)

Terminiello v. Chicago, 337 U.S. 1, (1949)

Time v. Hill, 335 U.S. 374 (1966)

Tinker v. Des Moines School District, 393 U.S. 503, 508 (1969)

U.S. v. O'Brien, 391 U.S. 367, 376 (1968)

Van Alstyne, William W. First Amendment Cases and Material. New York: The Foundation Press, Inc., 1995.

Wisconsin v. Mitchell, 113 S. Ct. 2194 (1993)

Yates v. US, 354 U.S. 298 (1957)

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