Copyright (c) 2004 Marquette Law Review
Marquette Law Review
ARTICLE: THE TROUBLE WITH "FIGHTING WORDS": CHAPLINSKY v. NEW HAMPSHIRE IS A THREAT TO FIRST AMENDMENT VALUES AND SHOULD BE OVERRULED
88 Marq. L. Rev. 441
More than sixty years ago, the United States Supreme Court in Chaplinsky v. New Hampshire 1 declared that "fighting words" is a category of speech for which the First Amendment offers no protection. 2 The Chaplinsky decision was a tragedy for the jurisprudence of Freedom of Speech in two respects. The first was the Court's decision to carve out, in wholesale fashion, vast categories of exceptions 3 to the First Amendment's otherwise unqualified protection of speech. 4 The second was the Court's decision to proclaim as the first of these exceptions "fighting words," a category so ill-conceived that not once in the ensuing sixty-two years has the United States Supreme Court upheld a conviction based on it. 5 This Article is devoted principally to this second tragedy - the exclusion of speech branded "fighting words" from the realm of expression protected by the First Amendment.
There is no constitutional basis for denying protection to fighting words, either alone or as a subcategory of speech claimed to be unworthy of First Amendment protection. The Chaplinsky opinion, plagued with vague language regarding categories and characteristics of expression that purportedly do not qualify for First Amendment protection, violates established First Amendment standards in several regards. Perhaps most importantly, what the Court in Chaplinsky labels as fighting words is, in reality, "political" speech or speech on public issues, which deserves the utmost protection in the American democracy.
There are other aspects of Chaplinsky that demand ...
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