Incitement, Fighting Words, and Free Speech under Amendment Law
๐น First Amendment โ Free Speech Clause
The First Amendment to the U.S. Constitution protects freedom of speech, but that protection is not absolute. Certain categories of speech, including incitement and fighting words, may be restricted or punished without violating the Constitution.
๐ธ 1. Incitement to Imminent Lawless Action
โ Protected?
Not protected by the First Amendment.
๐น Key Case:
Brandenburg v. Ohio (1969) โ This is the leading case.
๐น Legal Standard (Brandenburg Test):
Speech advocating violence or lawbreaking can be restricted only if:
It is directed to inciting or producing imminent lawless action, and
It is likely to incite or produce such action.
๐ "Imminent" is the key word โ abstract advocacy of violence in the future is protected, but urging a crowd to riot right now is not.
๐น Example:
Saying โwe should overthrow the government somedayโ = protected
Urging a crowd to storm a building right now = unprotected
๐ธ 2. Fighting Words
โ Protected?
Not protected, but the doctrine is narrowly applied.
๐น Key Case:
Chaplinsky v. New Hampshire (1942)
๐น Legal Definition:
"Fighting words" are:
"Words which by their very utterance inflict injury or tend to incite an immediate breach of the peace."
They are personally abusive epithets directed at a specific individual likely to provoke a violent response.
๐น Examples:
Racial slurs, face-to-face insults likely to trigger a fight may fall under this
General political speech, even if offensive, is protected
โ ๏ธ Modern courts rarely uphold fighting words bans, often finding them overbroad or vague, especially when based on viewpoint or content.
๐ธ 3. Protected but Offensive Speech
The First Amendment protects even highly offensive, unpopular, or distasteful speech โ unless it falls into a narrow unprotected category like incitement or true threats.
๐น Key Cases:
Texas v. Johnson (1989) โ Flag burning is protected speech
Snyder v. Phelps (2011) โ Westboro Baptist Church protest near military funeral = protected, though deeply offensive
๐ธ Summary Table
| Type of Speech | Protected? | Key Standard/Case | Notes |
|---|---|---|---|
| Incitement | โ No | Brandenburg v. Ohio | Must be directed at and likely to cause imminent lawless action |
| Fighting Words | โ No | Chaplinsky v. New Hampshire | Personally abusive, likely to provoke immediate violence |
| Offensive Political Speech | โ Yes | Texas v. Johnson, Snyder v. Phelps | Protected even if deeply offensive |
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