Fighting Words, Hostile Audiences and True Threats: Overview

In Chaplinsky v. New Hampshire ,1 Footnote
315 U.S. 568 (1942) . the Court unanimously sustained a conviction under a statute proscribing “any offensive, derisive or annoying word” addressed to any person in a public place under the state court’s interpretation of the statute as being limited to “fighting words” — i.e. , to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.” The statute was sustained as “narrowly drawn and 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.” 2 Footnote
315 U.S. at 573 . The case is best known for Justice Murphy’s famous dictum. “[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 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 which 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.” 3 Footnote
315 U.S. at 571–72 .

On the obverse side, the “hostile audience” situation, the Court once sustained a conviction for disorderly conduct of one who refused police demands to cease speaking after his speech seemingly stirred numbers of his listeners to mutterings and threatened disorders.6 Footnote
Feiner v. New York, 340 U.S. 315 (1951) . See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941) , in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) . But this case has been significantly limited by cases that hold protected the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that breach of the peace and disorderly conduct statutes may not be used to curb such expression.

The cases are not clear as to what extent the police must go in protecting the speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder will entitle the authorities to terminate the speech or other expressive conduct.7 Footnote
The principle actually predates Feiner . See Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Terminiello v. Chicago, 337 U.S. 1 (1949) . For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Brown v. Louisiana, 383 U.S. 131 (1966) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Bachellar v. Maryland, 397 U.S. 564 (1970) . Significant is Justice Harlan’s statement of the principle reflected by Feiner . “Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951) .” Cohen v. California, 403 U.S. 15, 20 (1971) . Nor, in the absence of incitement to illegal action, may government punish mere expression or proscribe ideas,8 Footnote
Cohen v. California, 403 U.S. 15 (1971) ; Bachellar v. Maryland, 397 U.S. 564 (1970) ; Street v. New York, 394 U.S. 576 (1969) ; Schacht v. United States, 398 U.S. 58 (1970) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) ; Stromberg v. California, 283 U.S. 359 (1931) . regardless of the trifling or annoying caliber of the expression.9 Footnote
Coates v. City of Cincinnati, 402 U.S. 611 (1971) ; Cohen v. California, 403 U.S. 15 (1971) ; Gooding v. Wilson, 405 U.S. 518 (1972) .

Threats of Violence Against Individuals

The Supreme Court has cited three “reasons why threats of violence are outside the First Amendment” : “protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.” 10 Footnote
R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) . In Watts v. United States , however, the Court held that only “true” threats are outside the First Amendment.11 Footnote
394 U.S. 705, 708 (1969) (per curiam). The defendant in Watts , at a public rally at which he was expressing his opposition to the military draft, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” 12 Footnote
394 U.S. at 706 . He was convicted of violating a federal statute that prohibited “any threat to take the life of or to inflict bodily harm upon the President of the United States.” The Supreme Court reversed. Interpreting the statute “with the commands of the First Amendment clearly in mind,” 13 Footnote
394 U.S. at 707 . it found that the defendant had not made a “true ‘threat,’” but had indulged in mere “political hyperbole.” 14 Footnote
394 U.S. at 708 . In Virginia v. Black, 538 U.S. 343, 359 (2003) , the Court, citing Watts , upheld a statute that outlawed cross burnings done with the intent to intimidate. A cross burning done as “a statement of ideology, a symbol of group solidarity,” or “in movies such as Mississippi Burning,” however, would be protected speech. Id. at 365–366 .

In NAACP v. Claiborne Hardware Co. , white merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by black citizens of their businesses, and to enjoin future boycott activity.15 Footnote
458 U.S. 886 (1982) . Claiborne is also discussed below under “Public Issue Picketing and Parading.” During the course of the boycott, NAACP Field Secretary Charles Evers had told an audience of “black people that any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.” 16 Footnote
458 U.S. at 900, n.29 . See id. at 902 for a similar remark by Evers. The Court acknowledged that this language “might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence . . . .” 17 Footnote
458 U.S. at 927 . Yet, no violence had followed directly from Evers’ speeches, and the Court found that Evers’ “emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in Brandenburg . . . . An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.” 18 Footnote
458 U.S. at 928 . Although it held that, under Brandenburg , Evers’ speech did not constitute unprotected incitement of lawless action,19 Footnote
Brandenburg v. Ohio, 395 U.S. 444 (1969) . Brandenburg is discussed above under “Is There a Present Test?” the Court also cited Watts , thereby implying that Evers’ speech also did not constitute a “true threat.” 20 Footnote
Claiborne , 458 U.S. at 928 n.71 .

Group Libel, Hate Speech

In Beauharnais v. Illinois ,21 Footnote
343 U.S. 250 (1952) . relying on dicta in past cases,22 Footnote
Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) ; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707–08 (1931) . the Court upheld a state group libel law that made it unlawful to defame a race or class of people. The defendant had been convicted under this statute after he had distributed a leaflet, part of which was in the form of a petition to his city government, taking a hard-line white-supremacy position, and calling for action to keep African Americans out of white neighborhoods. Justice Frankfurter for the Court sustained the statute along the following reasoning. Libel of an individual, he established, was a common-law crime and was now made criminal by statute in every state in the Union. These laws raise no constitutional difficulty because libel is within that class of speech that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then no good reason appears to deny a state the power to punish the same utterances when they are directed at a defined group, “unless we can say that this is a willful and purposeless restriction unrelated to the peace and well-being of the State.” 23 Footnote
Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952) . The Justice then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from unrestrained racial utterances. Nor did the Constitution require the state to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.24 Footnote
343 U.S. at 265–66 . “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary . . . to consider the issues behind the phrase ‘clear and present danger.’” 25 Footnote
343 U.S. at 266 .

Beauharnais has little continuing vitality as precedent. Its holding, premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been substantially undercut by subsequent developments, not the least of which are the Court’s subjection of defamation law to First Amendment challenge and its ringing endorsement of “uninhibited, robust, and wide-open” debate on public issues in New York Times Co. v. Sullivan .26 Footnote
376 U.S. 254 (1964) . See also Collin v. Smith , 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.) , stay denied, 436 U.S. 953 (1978) , cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on the basis that Court should review case that is in “some tension” with Beauharnais ). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval). In R.A.V. v. City of St. Paul , the Court, in an opinion by Justice Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not “entirely invisible to the Constitution,” even though they “can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content.” 27 Footnote
505 U.S. 377, 383 (1992) . Content discrimination unrelated to that “distinctively proscribable content,” however, runs afoul of the First Amendment.28 Footnote
505 U.S. at 384 . Therefore, the city’s bias-motivated crime ordinance, interpreted as banning the use of fighting words known to offend on the basis of race, color, creed, religion, or gender, but not on such other possible bases as political affiliation, union membership, or homosexuality, was invalidated for its content discrimination. “The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects.” 29 Footnote
Id. 505 U.S. at 391 . On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993) . The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485 . It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487–88 . See generally Laurence H. Tribe , The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice , 1993 Sup. Ct. Rev. 1 .

In Virginia v. Black , the Court held that its opinion in R.A.V. did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.30 Footnote
538 U.S. 343 (2003) . A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. Id. at 365–66 . Such a prohibition does not discriminate on the basis of a defendant’s beliefs: “as a factual matter it is not true that cross burners direct their intimidating conduct solely to racial or religious minorities. . . . The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages. . . .” 31 Footnote
538 U.S. at 362–63 .

Footnotes 1 315 U.S. 568 (1942) . 2 315 U.S. at 573 . 3 315 U.S. at 571–72 . 4 Cohen v. California, 403 U.S. 15, 20 (1971) . Cohen’s conviction for breach of the peace, occasioned by his appearance in public with an “offensive expletive” lettered on his jacket, was reversed, in part because the words were not a personal insult and there was no evidence of audience objection. 5 The cases hold that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are “fighting words” that have a direct tendency to cause acts of violence by the person to whom they are directed. Gooding v. Wilson, 405 U.S. 518 (1972) ; Hess v. Indiana, 414 U.S. 105 (1973) ; Lewis v. City of New Orleans, 415 U.S. 130 (1974) ; Lucas v. Arkansas, 416 U.S. 919 (1974) ; Kelly v. Ohio , 416 U.S. 923 (1974) ; Karlan v. City of Cincinnati , 416 U.S. 924 (1974) ; Rosen v. California , 416 U.S. 924 (1974) ; see also Eaton v. City of Tulsa , 416 U.S. 697 (1974) . 6 Feiner v. New York, 340 U.S. 315 (1951) . See also Milk Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941) , in which the Court held that a court could enjoin peaceful picketing because violence occurring at the same time against the businesses picketed could have created an atmosphere in which even peaceful, otherwise protected picketing could be illegally coercive. But compare NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) . 7 The principle actually predates Feiner . See Cantwell v. Connecticut, 310 U.S. 296 (1940) ; Terminiello v. Chicago, 337 U.S. 1 (1949) . For subsequent application, see Edwards v. South Carolina, 372 U.S. 229 (1963) ; Cox v. Louisiana, 379 U.S. 536 (1965) ; Brown v. Louisiana, 383 U.S. 131 (1966) ; Gregory v. City of Chicago, 394 U.S. 111 (1969) ; Bachellar v. Maryland, 397 U.S. 564 (1970) . Significant is Justice Harlan’s statement of the principle reflected by Feiner . “Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951) .” Cohen v. California, 403 U.S. 15, 20 (1971) . 8 Cohen v. California, 403 U.S. 15 (1971) ; Bachellar v. Maryland, 397 U.S. 564 (1970) ; Street v. New York, 394 U.S. 576 (1969) ; Schacht v. United States, 398 U.S. 58 (1970) ; Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) ; Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959) ; Stromberg v. California, 283 U.S. 359 (1931) . 9 Coates v. City of Cincinnati, 402 U.S. 611 (1971) ; Cohen v. California, 403 U.S. 15 (1971) ; Gooding v. Wilson, 405 U.S. 518 (1972) . 10 R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992) . 11 394 U.S. 705, 708 (1969) (per curiam). 12 394 U.S. at 706 . 13 394 U.S. at 707 . 14 394 U.S. at 708 . In Virginia v. Black, 538 U.S. 343, 359 (2003) , the Court, citing Watts , upheld a statute that outlawed cross burnings done with the intent to intimidate. A cross burning done as “a statement of ideology, a symbol of group solidarity,” or “in movies such as Mississippi Burning,” however, would be protected speech. Id. at 365–366 . 15 458 U.S. 886 (1982) . Claiborne is also discussed below under “Public Issue Picketing and Parading.” 16 458 U.S. at 900, n.29 . See id. at 902 for a similar remark by Evers. 17 458 U.S. at 927 . 18 458 U.S. at 928 . 19 Brandenburg v. Ohio, 395 U.S. 444 (1969) . Brandenburg is discussed above under “Is There a Present Test?” 20 Claiborne , 458 U.S. at 928 n.71 . 21 343 U.S. 250 (1952) . 22 Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942) ; Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707–08 (1931) . 23 Beauharnais v. Illinois, 343 U.S. 250, 254–58 (1952) . 24 343 U.S. at 265–66 . 25 343 U.S. at 266 . 26 376 U.S. 254 (1964) . See also Collin v. Smith , 447 F. Supp. 676 (N.D. Ill.) (ordinances prohibiting distribution of materials containing racial slurs are unconstitutional), aff’d, 578 F.2d 1197 (7th Cir.) , stay denied, 436 U.S. 953 (1978) , cert. denied, 439 U.S. 916 (1978) (Justices Blackmun and Rehnquist dissenting on the basis that Court should review case that is in “some tension” with Beauharnais ). But see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing Beauharnais with approval). 27 505 U.S. 377, 383 (1992) . 28 505 U.S. at 384 . 29 Id. 505 U.S. at 391 . On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant’s motive in selecting a victim of a particular race. Wisconsin v. Mitchell, 508 U.S. 476 (1993) . The law has long recognized motive as a permissible element in sentencing, the Court noted. Id. at 485 . It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (e.g., they are more likely to provoke retaliatory crimes). Id. at 487–88 . See generally Laurence H. Tribe , The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice , 1993 Sup. Ct. Rev. 1 . 30 538 U.S. 343 (2003) . A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is not always intended to intimidate,” but may constitute a constitutionally protected expression of opinion. Id. at 365–66 . 31 538 U.S. at 362–63 . 32 582 U.S. ___, No. 15-1293, slip op. (2017) . 33 Id. at 1 . 34 Id. at 1–2 . 35 Iancu v. Brunetti, 588 U.S. ___, No. 18-302, slip op. at 2 (2019) (quoting 15 U.S.C. § 1052 (a)). See also infra Amend. 1, Non-obscene But Sexually Explicit and Indecent Expression.