Fighting words

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For the Canadian television series, see Fighting Words (TV series).

Fighting words are written or spoken words, generally expressed to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction. It is also used in a general sense of words that when uttered tend to create (deliberately or not) a verbal or physical confrontation by their mere usage.

Canada[edit]

In Canada, freedom of speech is generally protected under Section 2 of Canadian Charter of Rights and Freedoms. The Criminal Code, however, limits these freedoms and provides for several forms of punishable hate speech. The form of punishable hate speech considered to encompass fighting words is identified in Section 319:[1]

Public incitement of hatred. Every one who, by communicating statements in a public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of [a crime].

— s. 319[1], Criminal Code[2]

United States[edit]

The fighting words doctrine, in United States constitutional law, is a limitation to freedom of speech as protected by the First Amendment to the United States Constitution.

In 1942, the U.S. Supreme Court established the doctrine by a 9–0 decision in Chaplinsky v. New Hampshire. It held that "insulting or 'fighting words,' those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem."

Chaplinsky decision[edit]

Chaplinsky, a Jehovah's Witness, had purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching that he was "a God-damned racketeer" and "a damned fascist" and was arrested. The court upheld the arrest and wrote in its decision that

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have 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 that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

— Chaplinsky v. New Hampshire, 1942

Post-Chaplinsky[edit]

The court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In Street v. New York (1969),[3] the court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere offensiveness does not qualify as "fighting words". In similar manner, in Cohen v. California (1971), Cohen's wearing a jacket that said "fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets"; the Court held the phrase to be protected speech. In later decisions—Gooding v. Wilson (1972) and Lewis v. New Orleans (1974)—the Court invalidated convictions of individuals who cursed police officers, finding that the ordinances in question were unconstitutionally overbroad.

In R.A.V. v. City of St. Paul (1992), the Court overturned a statute prohibiting speech or symbolic expression that "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" on the grounds that, even if the specific statute was limited to fighting words, it was unconstitutionally content-based and viewpoint-based because of the limitation to race-/religion-/sex-based fighting words. The Court, however, made it repeatedly clear that the City could have pursued "any number" of other avenues, and reaffirmed the notion that "fighting words" could be properly regulated by municipal or state governments.

In Snyder v. Phelps (2011), dissenting Justice Samuel Alito likened the protests of the Westboro Baptist Church members to fighting words and of a personal character, and thus not protected speech. The majority disagreed and stated that the protester's speech was not personal but public, and that local laws which can shield funeral attendees from protesters are adequate for protecting those in times of emotional distress.

Australia[edit]

The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensible part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.[4]

In Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 and Australian Capital Television Pty Ltd v the Commonwealth (1992) 177 CLR 106, the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in Unions NSW v New South Wales [2013] HCA 58.

According to judgment by Gummow, Hayne and Kirby JJ, in the context of section 7(1)(d), ‘“abusive” and “insulting” should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation’.[5] This faithfully reflects the original ‘fighting words’ doctrine and not how it is now understood and applied by the Supreme Court. But, as Kent Greenawalt notes in the First Amendment context, the application of one part of the original Chaplinsky formula (‘words likely to cause an average addressee to fight’) is problematic in important respects:

The first ambiguity concerns the persons to be counted among potential addressees: everyone, only people to whom a phrase really ‘applies,’ or all those likely to be angered by having the label applied to them? Someone of French origin reacts differently to being called a ‘Polack’ than someone of Polish origin … Another ambiguity is how an ‘average addressee’ is to be conceived … [And], [c]an the same remark be punishable if directed at the one person able to respond and constitutionally protected if directed at people not able to match the speaker physically?[6]

So, even if one favours the proscription of the kinds of speech that fall within the ‘fighting words’ category, it is worth noting that if the original Chaplinsky formula is invoked to identify those words, its application in Australian free speech law will not be straightforward or without controversy.

Incitement vs. fighting words[edit]

Incitement is a related doctrine, allowing the government to prohibit advocacy of unlawful actions if the advocacy is both intended to and likely to cause immediate breach of the peace. The modern standard was defined in Brandenburg v. Ohio (1969), where the Court reversed the conviction of a Ku Klux Klan leader accused of advocating violence against racial minorities and the national government. The Ohio statute under which the conviction occurred was overturned as unconstitutional because "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action."[7]

The difference between incitement and fighting words is subtle, focusing on the intent of the speaker. Inciting speech is characterized by the speaker's intent to make someone else the instrument of his or her unlawful will. Fighting words, by contrast, are intended to cause the hearer to react to the speaker.[8]

References[edit]

  1. ^ Stephen Brooks, Hate Speech and the Rights Cultures of Canada and the United States
  2. ^ Criminal Code, RSC 1985, c C-46, s 319(1).
  3. ^ Street v. New York
  4. ^ https://www.humanrights.gov.au/freedom-information-opinion-and-expression
  5. ^ Coleman [2004 HCA 39]; (2004) 209 ALR 182, 229 (Gummow and Hayne JJ), 247 (Kirby J) employing similar reasoning; see also 186 (Gleeson CJ), which provides an alternative and reasonable construction of s 7(1)(d) which recognises that: It is open to parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, an no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur.
  6. ^ Kent Greenawalt, ‘Insults and Epithets: Are They Protected Speech?’ (1990) 42 Rutgers Law Review 287, 296–7.
  7. ^ Brandenburg v. Ohio, 395 U.S. 444, 448 (1969).
  8. ^ Guiora, Amos. Tolerating intolerance: The price of protecting extremism. New York: Oxford University Press. 2013.

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