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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.
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:
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, Criminal Code
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, 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
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), 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.
Incitement vs. fighting words
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."
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.
- Stephen Brooks, Hate Speech and the Rights Cultures of Canada and the United States
- Criminal Code, RSC 1985, c C-46, s 319(1).
- Street v. New York
- Brandenburg v. Ohio, 395 U.S. 444, 448 (1969).
- Guiora, Amos. Tolerating intolerance: The price of protecting extremism. New York: Oxford University Press. 2013.
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