Skip to Content
Law Office of Daniel Horowitz Law Office of Daniel Horowitz
Call Us Today! 925-291-5388
Top

What are considered "Fighting Words"?

Daniel Horowitz Logo
|

Fighting Words and the First Amendment: When Speech Incites Violence

The First Amendment to the U.S. Constitution protects freedom of speech, but this protection is not absolute. One category of speech that receives limited First Amendment protection is "fighting words."

What are Fighting Words?

  • Definition: Words that are directed at an individual and are inherently likely to provoke an immediate violent reaction. They are "personally abusive epithets" that go beyond mere insults or offensive language.
    • Counterman v. Colorado, 600 U.S. 66 (2023)
  • Not Protected: Fighting words are not considered protected speech because they inflict injury and tend to incite an immediate breach of the peace.
    • In re Alejandro G., 37 Cal.App.4th 44 (1995), Virginia v. Black, 538 U.S. 343 (2003)

But the problem is not so simple.  Are racial slurs "fighting words" or protected speech?  Are hateful opinions on Facebook protected from government interference (by forcing Facebook to ban the post?)

Content-Neutral Regulation:

While the government can regulate fighting words, it must do so in a content-neutral way. This means the regulation cannot discriminate based on the viewpoint or message of the speech.

  • No Viewpoint Discrimination: The government cannot prohibit only those fighting words that express a particular opinion or that are offensive based on race, religion, gender, or other characteristics.
    • R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), Aguilar v. Avis Rent A Car System, Inc., 21 Cal.4th 121 (1999), In re Joshua H., 13 Cal.App.4th 1734 (1993)

Narrowly Tailored Laws:

Laws regulating fighting words must be carefully crafted to avoid sweeping in protected speech. They should specifically target speech that is likely to incite immediate violence.

  • Examples of Permissible Regulations:
    • Statutes that prohibit face-to-face insults likely to cause a breach of the peace.
    • Laws that punish fighting words but are written to avoid capturing protected expression.
    • Gooding v. Wilson, 405 U.S. 518 (1972), Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942)

Key Takeaway:

The government can regulate fighting words to prevent violence and maintain public order. However, these regulations must be content-neutral and narrowly tailored to avoid suppressing protected speech. The focus should be on the potential for immediate violence, not on the message itself.