More than eight decades ago, the Supreme Court invented a vague First Amendment exception that would-be censors continue to invoke.
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“We’re not going to give in to terrorism,” Vice President J.D. Vance declared after an Immigration and Customs Enforcement (ICE) agent fatally shot Minneapolis protester Renée Good in January. Vance averred that Good was involved in anti-ICE “terrorism,” which he said included not only violent assaults but also provocations by “people trying to antagonize” ICE agents.
In viewing speech that pisses off cops as a crime, Vance was following a legal tradition that the U.S. Supreme Court launched in 1942, when it invented a vague First Amendment exception for “fighting words.” Although subsequent decisions cast serious doubt on the viability of that doctrine, its logic remains popular with government officials who think speech that offends them should be illegal.
The case that gave birth to this handy excuse for censorship began on a Saturday afternoon in April 1940, when a Jehovah’s Witness named Walter Chaplinsky attracted a hostile crowd while distributing literature near Central Square in Rochester, New Hampshire. Passersby were offended by Chaplinsky’s message, which condemned organized religion as a “racket.” They complained to James Bowering, the city marshal who ran the local police department. According to Bowering, he informed the complainants that Chaplinsky had every right to proselytize but also warned Chaplinsky that he had better cut it out.
Frank R. Kenison, New Hampshire’s attorney general, would later tell the Supreme Court that Chaplinsky “announced his literature in terms having a tendency to irritate the people by calling ‘racketeers’ priests and those of their faith.” Bowering warned Chaplinsky that “the people were getting in an ugly mood as a result of his public announcements with reference to priests and religion.” A short while later, Bowering, who had left the scene, “was advised by a man passing by in a car that there was what he thought was a riot at the Square.”
On his way to “the point of trouble,” Kenison said, Bowering “met two officers” who were taking Chaplinsky to the police station “more for his protection than for arrest.” Bowering “reminded” Chaplinsky of “his earlier warning” that “the people might get out of hand if he continued using the language he had with reference to their faith and priests.” At that point, according to Kenison, Chaplinsky spoke the words that changed his protective custody into an arrest.
“You are a God-damned racketeer” and “damned fascist,” Chaplinsky allegedly said, adding that “the whole government of Rochester are fascists or agents of fascists.” Those “offensive, derisive and annoying words and names,” Kenison explained, were a crime under New Hampshire law.
That crime earned Chaplinsky a six-month jail sentence, which the New Hampshire Supreme Court unanimously approved in March 1941, rejecting the preacher’s argument that his prosecution violated the First Amendment. A year later, the U.S. Supreme Court unanimously agreed that Chaplinsky had no right to call Bowering a “racketeer” and a “fascist.” To reach that conclusion, the justices invented a new, hazily defined exception to the First Amendment that would-be censors are still invoking more than eight decades later.
Freedom of speech, the justices ruled in Chaplinsky v. New Hampshire, does not apply to “‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” After formulating that vague and potentially sweeping rule, the Supreme Court never again relied on it to uphold a criminal conviction. But the Court has not explicitly repudiated the doctrine, which continues to influence lower-court decisions—often involving defendants who, like Chaplinsky, were arrested for talking back to the police.
The “fighting words” doctrine also figures in contemporary political debates about the constitutionality of punishing people for offensive speech. President Donald Trump explicitly invoked the doctrine last August, when he instructed Attorney General Pam Bondi to “prioritize” the prosecution of flag burners. Bondi herself alluded to the “fighting words” exception after the September 10 assassination of conservative activist Charlie Kirk. Drawing an erroneous constitutional distinction between “free speech” and “hate speech,” she warned that the Justice Department “will absolutely target you, go after you, if you are targeting anyone with hate speech.”
Syndicated columnist Wilmer J. Leon agreed with Bondi that “hate speech” should not be confused with “free speech.” But as Leon saw it, Kirk himself had crossed that line.
“We cannot afford to be lulled into this trap equating racist rhetoric and hate with protected political speech,” Leon wrote. Citing Chaplinsky, he argued that Kirk’s criticism of Martin Luther King Jr., whom Kirk had called “awful” and “not a good person,” amounted to “fighting words” rather than “political speech” because “those comments have no social value.” Since Leon described Kirk as “an angry, ignorant, intolerant, xenophobic, racist, hate spewing white supremacist,” that column might itself qualify as “hate speech” in Bondi’s book.
The versatility of the “fighting words” doctrine is not a point in its favor. The Supreme Court’s rationale for blessing Chaplinsky’s punishment is an open-ended license to restrict speech based on the anticipated response of people offended by it. Might they decide to physically attack the speaker? And even if they remain peaceful, might they suffer the “injury” that certain words “inflict” by “their very utterance”?
These subjective judgments are bound to be influenced by the majority’s view of acceptable expression. The “fighting words” doctrine is therefore inherently hostile to dissenters like Chaplinsky, precisely the people who are most likely to need the First Amendment’s protection.
‘Please Arrest the Ones Who Started This Fight’
Kenison’s account of the day Chaplinsky was arrested omitted details that underline the dangers of letting fear of violence, let alone the possibility of hurt feelings, override freedom of speech. Kenison conceded that Bowering advised Chaplinsky to stop preaching in light of the anger his words had provoked. But according to Chaplinsky, Bowering also refused to protect him from hecklers who repeatedly assaulted him.
Chaplinsky’s lawyers described “a tumultuous crowd of about fifty or sixty persons” who “objected to his work and threatened him with violence if he did not discontinue.” When Bowering first arrived at the scene, he was “accompanied by a man named Bowman,” who “assaulted” Chaplinsky, “catching him by the throat with his left hand” and punching him “with his right fist.” Chaplinsky “wrenched himself free” and turned to Bowering, saying, “Marshal, I want you to arrest this man.” Bowering’s reply: “I will if I feel like it.”
According to Chaplinsky’s Supreme Court brief, Bowering then left. About five minutes later, Bowman, armed with an American flag on a staff, ran toward Chaplinsky and tried to spear him. Chaplinsky “avoided the blow” but “was pushed by Bowman into the gutter against an automobile.” Bowman then “gave the flag to another man,” grabbed Chaplinsky by the collar, called him a “son of a bitch,” and demanded that he salute the flag.
Bowman knew Chaplinsky would refuse. Jehovah’s Witnesses view such gestures as a form of idolatry—one of several unpopular beliefs that help explain why the group was frequently singled out out for abuse and discrimination.
After the flag incident, Chaplinsky’s lawyers reported, Bowering and three other officers “picked him up from the ground” and started “shoving him along roughly” to the police station. Chaplinsky again suggested that Bowering do his job, asking him to “please arrest the ones who started this fight.” The marshal again refused, saying, “Shut up, you damn bastard, and come along.” This was the context in which Chaplinsky called Bowering a “racketeer” and a “fascist,” although he denied saying “God-damned.”
It got worse. While being “shoved and dragged” to the police station, Chaplinsky “recognized among the
