• Facts: Jehovah’s Witness calls city marshal "a Goddamned racketeer and a damned fascist." Arrested under state law prohibiting "addressing any offensive…word to any other person…in a public place." USSC upholds conviction, saying "fighting words–which by their very utterance inflict injury or tend to incite an immediate breach of the peace," are not protected because "such utterances are no essential part of any exposition of ideas…"
• Significance: Origin of "fighting words" doctrine. Later narrowed to verbal assaults in face-to-face confrontations that tend to provoke the person addressed to immediate physical retaliation.

Terminiello v. Chicago (1949)

Facts: Arthur Terminiello, a former Catholic priest who became an anti-Communist crusader, gave a shrill, anti-Semitic speech at an auditorium in Chicago as an angry mob of about a thousand protestors threw bricks and bottles, smashed windows and nearly broke into the hall. Terminiello was fined $100 for breach of the peace, which the judge defined as including speech which "stirs the public to anger, invites dispute, brings about a condition or unrest, or creates a disturbance."

On appeal, a majority of the U.S. Supreme Court threw out his conviction as a violation of Terminiello’s 1st Amendment rights. Justice Douglas noted that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.

Douglas sidestepped the question whether Terminiello’s words were fighting words, and by doing so, helped narrow the scope of the fighting words doctrine. Justice Jackson, dissenting, argued that the “danger of rioting and violence in response to the speech was clear, present and immediate,” and that the state has the responsibility to punish someone who toches off a public riot. “No mob has ever protected any liberty, even its own, but if not put down it always winds up in an orgy of lawlessness which respects no liberties… The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”

Significance: Court throws doubt on fighting words doctrine and the idea of the "heckler's veto," or the idea that the reaction of the listener(s) can determine whether or not speech is constitutionally punishable. Justice Jackson seems to be saying that when provocative speech incites a mob, the state does have a right to punish the speaker.

(Search Lexis/Nexis Academic under this case name)

• Facts: Nazis target Jewish suburb of Chicago for march. Town quickly enacts ordinances requiring insurance bond; banning all demonstrations that "incite violence, hatred, abuse or hostility toward…persons" or by political demonstrators in military uniform. Courts strike down laws as imposing sweeping bans on the content of speech.
• Significance: Judge said, "It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than...to…embark…on the dangerous course of permitting the govt. to decide what citizens may say and hear." ( Ill. S. Ct. holds swastika not within definition of fighting words, as hostile audience is not a basis for restraining [speech].
• To read newspaper articles about the Skokie march, and listen to debates by the town council, go to http://www.digitalpast.org/ Go to advanced search: Subject: Skokie; key words: Nazi march; Historical date range: 1970-79

• Facts: After burning a cross on black family’s lawn, R.A.V. prosecuted under city’s Bias Motivated Crime Ordinance, which prohibits display of a symbol which one knows "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender." USSC holds ordinance invalid under FA.
• Significance: Even fighting words can’t be regulated on basis of content. Ordinance punishes certain speech, i.e. hate speech on race, color, creed, religion or gender, but not hate speech on homosexuality or pol. affiliation. "Under FA, majority preferences must be expressed in some fashion other than silencing speech on the basis of its content." City has other ways to punish cross-burning.

• Facts: Campus newspaper challenges UW rule prohibiting students from directing discriminatory epithets at others with intent to demean them and create a hostile educational environment.
• Significance: Federal district court judge holds that UW Rule does not meet fighting words test and is overbroad because it is a content-based rule which regulates a substantial amount of speech protected by the FA and outside the scope of the fighting words test, i.e. speech where no breach of the peace is likely to occur.

• Facts: O'Brien convicted of burning draft card during Vietnam War. Selective Service law punished anyone "who ... knowingly destroys...any such certificate . . ." Ct. of Appeals upheld O'Brien's conviction, as did USSC, which held that law "is a precisely drawn provision which protects the Govt's substantial interest in an efficient and easily administered system for raising armies."
• Significance: Supreme Court holds government has right to impose minimal ‘time, place and manner’ restrictions on free speech if they are: 1) content-neutral, (2) further a substantial govt. interest, (3) the incidental restriction on speech is drawn narrowly and 4) the governmental interest is unrelated to suppression of free expression.

• Facts: Gregory Johnson leads Communist Youth Brigade in protest at 1984 GOP convention in Dallas. On City Hall steps, he burns American flag as protestors chant, "Red, white and blue, we spit on you." Johnson convicted of violating Texas flag desecration law and sentenced to year in prison. USSC (5-4) holds Johnson’s conviction invalid.
• Significance: Ct. holds Johnson punished for content of his symbolic speech. "If there is a bedrock principle underlying the FA, it is that the government may not prohibit the expression of an idea because society finds the idea offensive. We can imagine no more appropriate response to burning a flag than waving one’s own." [Congress’ flag desecration law struck down 5-4 in U.S. v. Eichman (1990)]

Listen to Adam Liptak, New York Times legal writer, on hate speech in America

Expressive conduct flowchart

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