Essay: The Fighting Words Doctrine: Alive and Well in the Lower Courts

Abstract

The fighting words doctrine is alive and well in the lower courts. The first part of this article briefly explains how the fighting words doctrine has fared in the U.S. Supreme Court. These results would seem to indicate that it would be rare indeed for a defendant’s words to fall under the fighting words exception. That is not always the case. The next part of this article provides a sampling of decisions in which lower courts have rejected First Amendment-based defenses to disorderly conduct, breach of the peace, or similar charges based on the fighting words doctrine. The final part of the essay then explains the specific factors or facts that cause lower courts to find that certain expression constitutes unprotected fighting words rather than protected speech.

Keywords: Fighting Words Doctrine, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), First Amendment