The Stone Court (1941–46)

First Amendment

In what decision did the Stone Court create the fighting words exception to the First Amendment?

The Stone Court determined in Chaplinsky v. New Hampshire (1942) that so-called “fighting words”—words that by their very nature inflict injury and cause retaliation—are not protected by the First Amendment. The case involved a former priest named Walter Chaplinsky, who denounced official religion as a “racket” and called a public marshal a “damned fascist” and a “racketeer.” The marshal arrested Chaplinsky and charged him with violating a statute that prohibited calling persons annoying or derisive names in public. The U.S. Supreme Court rejected Chaplinsky’s First Amendment defense, reasoning that the statute applied only to prohibiting “fighting words.”

Justice Frank Murphy wrote for the unanimous Court:

There are certain well-defined and narrowly limited classes of speech, the prevention of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well-observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

The U.S. Supreme Court in later years limited—but never overruled—the Chaplinsky decision. The fighting words doctrine still remains a part of First Amendment jurisprudence.


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