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Fighting words are spoken words directed to the person of the hearer which would have a tendency to cause acts of violence by the person to whom, individually, the remark is addressed. The term fighting words describes words that when uttered inflict injury or tend to incite an immediate breach of the peace.
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 . [1] 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 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 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.
— Chaplinsky v. New Hampshire, 1942 [1]
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".
In Brandenburg v. Ohio (1969), even speech such as "Bury the niggers" and "Send the Jews back to Israel," was held to be protected speech under the First Amendment in a per curiam decision. In addition, despite the speech being broadcast on network television it did not direct to incite or produce imminent lawless action nor was it likely to produce such action.
In 1972, the Court held that offensive and insulting language, even when directed at specific individuals, is not fighting words:
In Collin v. Smith (1978) Nazis displaying swastikas and wearing military-style uniforms marching through a community with a large Jewish population, including survivors of German concentration camps, were not using fighting words.
Texas v. Johnson (1989) redefined the scope of fighting words to "a direct personal insult or an invitation to exchange fisticuffs" in juxtapose to flag burning as symbolic speech. [6]
In R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003), the Court held that cross burning is not 'fighting words' without intent to intimidate.
In Snyder v. Phelps (2011), respondents' counsel argued that the Court's definition of fighting words required immediacy, imminence, intent and proximity. Justice Ginsburg stated that the Court had rejected spreading the concept beyond words that immediately trigger an instinctive reaction. [7] The Court held that even "outrageous" and "hurtful speech" such as: "God Hates the USA/Thank God for 9/11", "America is Doomed", "Don't Pray for the USA", "Thank God for IEDs", "Thank God for Dead Soldiers", "Pope in Hell", "Priests Rape Boys", "God Hates Fags", "Fags Doom Nations", "You're Going to Hell," and "God Hates You" is to be considered public debate, particularly when conducted on public land, and must enjoy "special" First Amendment protection. Lone 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 protesters' 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.
The Australian Constitution does not explicitly protect freedom of expression, but the High Court has held that an implied freedom of political communication exists as an indispensable 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. [8]
In Nationwide News Pty Ltd v Wills , [9] and Australian Capital Television Pty Ltd v Commonwealth , [10] 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. [11]
In 2004, the High Court considered the meaning of a statutory offence of using insulting words in a public place. [12] Justices Gummow and Hayne held that in the context of the section, '"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'. [13] : 77 Judge Michael Kirby employed similar reasoning. [13] : 87 Chief Justice Gleeson took a slightly different approach to the construction of the section, finding 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, and 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. [13] : 24
This faithfully reflects the original "fighting words" doctrine and not how it is now understood and applied by the United States Supreme Court.[ citation needed ] Greenawalt argues that in the First Amendment context, the application of one part of the original Chaplinsky formula ('words likely to cause an average addressee to fight') [1] 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? [14]
A number of criminal laws in Australia prohibit the use of offensive, obscene, abusive, insulting or indecent language in a public place. [15] One such example is section 4A of the Summary Offences Act 1988 (NSW), which prohibits the use of offensive language in, near or within hearing from a public place or school. [16] The penalty for using offensive, indecent or obscene language in Australia ranges from a small fine (for example, $660 in NSW) to up to 6 months imprisonment.
Police in a number of Australian states and territories also have the power to issue on-the-spot fines (infringement notices) for offensive language. [17] Police commonly use these offences to target four-letter words (such as cunt , or fuck , and their derivatives) uttered towards them, or in their presence. [18]
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. In the United States, the modern standard was defined in Brandenburg v. Ohio (1969), where the Supreme 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." [19]
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. [20]
Negligence is a failure to exercise appropriate care expected to be exercised in similar circumstances.
Profanity, also known as swearing, cursing, or cussing, involves the use of notionally offensive words for a variety of purposes, including to demonstrate disrespect or negativity, to relieve pain, to express a strong emotion, as a grammatical intensifier or emphasis, or to express informality or conversational intimacy. In many formal or polite social situations, it is considered impolite, and in some religious groups it is considered a sin. Profanity includes slurs, but most profanities are not slurs, and there are many insults that do not use swear words.
R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), is a case of the United States Supreme Court that unanimously struck down St. Paul's Bias-Motivated Crime Ordinance and reversed the conviction of a teenager, referred to in court documents only as R.A.V., for burning a cross on the lawn of an African-American family since the ordinance was held to violate the First Amendment's protection of freedom of speech. The Court reasoned that an ordinance like this constitutes "viewpoint discrimination" which may have the effect of driving certain ideas from the marketplace of ideas.
The system of tort law in Australia is broadly similar to that in other common law countries. However, some divergences in approach have occurred as its independent legal system has developed.
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), was a landmark decision of the US Supreme Court in which the Court articulated the fighting words doctrine, a limitation of the First Amendment's guarantee of freedom of speech.
Australian constitutional law is the area of the law of Australia relating to the interpretation and application of the Constitution of Australia. Legal cases regarding Australian constitutional law are often handled by the High Court of Australia, the highest court in the Australian judicial system. Several major doctrines of Australian constitutional law have developed.
Anticipatory repudiation or anticipatory breach is a concept in the law of contracts which describes words or conduct by a contracting party that evinces an intention not to perform or not to be bound by provisions of the agreement that require performance in the future.
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Coleman v Power was a High Court of Australia case that dealt with the implied freedom of political communication found in the Australian Constitution.
The Crimes Act1900 (NSW) is an Act of the Parliament of New South Wales that defines an extensive list of offences and sets out punishments for the majority of criminal offences in New South Wales (NSW), Australia. The Act, alongside the Crimes Act 1914 (Cth) and the Criminal Code Act 1995 (Cth), form the almost complete basis of criminal law for the State. It is the primary criminal law statute of NSW, and which formed the basis for the Australian Capital Territory's Crimes Act1900 (ACT).
In Australia, murder is a criminal offence where a person, by a voluntary act or omission, causes the death of another person with either intent to kill, intent to inflict grievous bodily harm, or with reckless indifference to human life. It may also arise in circumstances where the accused was committing, or assisting in the commission, of a different serious crime that results in a person's death. It is usually punished by life imprisonment. Australia is a federal nation and the law of murder is mostly regulated under the law of its constituent states and territories. There is also federal murder offence available in limited circumstances.
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Attorney-General (NSW) v Brewery Employees Union of NSW, commonly known as the Union Label case, was a landmark decision by the High Court of Australia on 8 August 1908. The case was significant in relation to the endorsement by the majority of the court of the reserved powers doctrine and as the first case to consider the scope of the power of the Commonwealth regarding trade marks. It also addressed who could challenge a law as unconstitutional. There was a strong division in the Court between the original members, Griffith CJ, Barton and O'Connor JJ and the two newly appointed justices, Isaacs and Higgins JJ.
Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association, known as the Railway Servants Case, is an early High Court of Australia case that held that employees of State railways could not be part of an interstate industrial dispute under the conciliation and arbitration power, applying the doctrine of "implied inter-governmental immunities". The doctrine was emphatically rejected by the High Court in the 1920 Engineers' Case, and in 1930 the High Court upheld the validity of an award binding on state railway authorities.
Hate speech in the United States cannot be directly regulated by the government due to the fundamental right to freedom of speech protected by the Constitution. While "hate speech" is not a legal term in the United States, the U.S. Supreme Court has repeatedly ruled that most of what would qualify as hate speech in other western countries is legally protected speech under the First Amendment. In a Supreme Court case on the issue, Matal v. Tam (2017), the justices unanimously reaffirmed that there is effectively no "hate speech" exception to the free speech rights protected by the First Amendment and that the U.S. government may not discriminate against speech on the basis of the speaker's viewpoint.
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