{"id":30883,"date":"2021-06-25T15:00:54","date_gmt":"2021-06-25T20:00:54","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/constitution\/amendment1\/first-amendment-limits--fighting-words--hostile-audiences--and-t.html"},"modified":"2024-08-21T18:57:50","modified_gmt":"2024-08-21T23:57:50","slug":"first-amendment-limits-fighting-words-hostile-audiences-and-t","status":"publish","type":"constitution","link":"https:\/\/constitution.findlaw.com\/amendment1\/first-amendment-limits-fighting-words-hostile-audiences-and-t.html","title":{"rendered":"Does the First Amendment Protect Threats and Hate Speech?"},"content":{"rendered":"\n
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Does the First Amendment Protect Threats and Hate Speech?<\/h1>\n\n
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\n By Balrina Ahluwalia, Esq.<\/a> | Legally reviewed by Edward Maggio, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n\n\n

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The First Amendment protects our constitutional right to free speech, but it doesn\u2019t protect all types of speech equally. In this article, we examine fighting words and true threats, two categories of speech the Supreme Court has deemed to be unprotected.<\/p>\n\n <\/div>\n\n\n\n

The first ten amendments to the U.S. Constitution<\/a> are also known as the Bill of Rights. The\u00a0Bill of Rights<\/a> aims<\/span>\u00a0to safeguard individual freedoms and constrain the power of the government.<\/p>\n

The First Amendment reflects these democratic ideals by establishing the freedom of speech<\/a>. Its free speech clause reads,<\/p>\n

\u201cCongress shall make no law\u2026abridging the freedom of speech\u2026”<\/i><\/p>\n

From this language, we can see that our First Amendment right to free speech begins as a prohibition on Congress<\/a>. Our federal legislature is bound by the Constitution, which means that Congress cannot enact laws that violate our rights to free speech. Through the passage of the Fourteenth Amendment<\/a> and the doctrine of incorporation, the U.S. Supreme Court<\/a> has determined that this prohibition extends to government action (state action<\/a>) of any kind and at any level.<\/p>\n

Government action restricting free speech can take many forms, including local ordinances, public library policies, court injunctions<\/a>, and federal agency action.<\/p>\n

Applicability of the First Amendment<\/h2>\n

The First Amendment generally applies to government regulation of private speech. It doesn\u2019t restrict government regulation of government speech<\/a>. Aside from a few exceptions recognized by the Supreme Court, this does not apply to speech limitations enforced by private entities.<\/p>\n

The Supreme Court has determined that speech protected by the First Amendment can include the written word and other expressive conduct. For example, refusing to salute the American flag or messaging on a t-shirt are both forms of speech, or free expression<\/a>, protected by the First Amendment.<\/p>\n

Free Speech Restrictions<\/h2>\n

However, the right to free speech isn\u2019t absolute. The Supreme Court has established several categories of unprotected speech. Obscenity<\/a> and defamation<\/a> are two such categories. In this article, we focus on speech the Supreme Court calls \u201cfighting words\u201d and \u201ctrue threats.\u201d<\/p>\n

The state generally has greater leeway to regulate and penalize unprotected speech. However, not all restrictions on unprotected speech are constitutional. This is particularly relevant if their reach extends to protected speech or if the restrictions involve content-based<\/a> distinctions.<\/p>\n

Similarly, not all restrictions on protected speech are unconstitutional.<\/p>\n

Legal Standards<\/h2>\n

The Court has developed legal standards<\/a> and frameworks for determining whether a government restriction on speech violates the First Amendment. Their application varies depending on the type of speech and circumstances involved.<\/p>\n

These standards typically weigh the government interest served by the restriction against the First Amendment freedoms burdened by it. In these analyses, we commonly refer to government interests as state interests.<\/p>\n

Strict scrutiny<\/a> is the most difficult standard to meet. For a speech restriction to pass constitutional muster, it must serve a compelling state interest in the least restrictive manner.<\/p>\n

Content-based restrictions are typically subject to a strict scrutiny standard of review. This is because, at its core, the constitutional right to free speech protects against government suppression of ideas.<\/p>\n

Still, the Supreme Court has established certain categories of speech and associated protections precisely because of their content. Fighting words and true threats are two such unprotected categories.<\/p>\n

Fighting Words<\/h2>\n

In 1942, the Court unanimously decided in \u00a0Chaplinsky v. New Hampshire<\/i><\/a> that the First Amendment doesn\u2019t protect fighting words. The Chaplinsky<\/i> Court reviewed a conviction under state law. that criminalized the use of \u201cfighting words.\u201d The law defined fighting words as speech \u201clikely to provoke the average person to retaliation, and thereby cause a breach of the peace.\u201d<\/p>\n

The Court upheld the conviction and the statute, which it found to be sufficiently narrowly tailored. The opinion explains that the law defined and prohibited specific acts likely to disrupt the peace in public places. This was well within the state\u2019s power.<\/p>\n

The Court explained that fighting words aren\u2019t protected because they play no crucial role in the free exchange of ideas and have minimal social value. As such, the public interest in maintaining order and morality far outweighs any benefit derived from their utterance.<\/p>\n

Chaplinsky <\/i>remains the prevailing standard, and the Court consistently cites ‘fighting words’ as a type of speech not protected. Yet, it has not affirmed any state action grounded in the Chaplinsky doctrine regarding fighting words.<\/p>\n

In Cohen v. California<\/i><\/a> (1971), the Court reversed Paul Cohen\u2019s conviction for disturbing the peace. Cohen was arrested and convicted for wearing a jacket that said \u201cFuck the Draft\u201d in a California courthouse. The Court overturned the conviction partly because the messaging didn\u2019t constitute fighting words as it wasn\u2019t directed at anyone personally.<\/p>\n

Audience Reaction to Free Speech<\/h2>\n

The Court has since held that \u201cspeech cannot be restricted simply because it is upsetting or arouses contempt<\/a>.\u201d<\/p>\n

In Terminiello v. Chicago<\/i><\/a> <\/i>(1949), the Supreme Court <\/i>reviewed another conviction. Arthur Terminiello was an outspoken activist and provocative speaker whose speeches typically drew large crowds of supporters and protesters.<\/p>\n

One such speech in Chicago sparked violence. The police arrested Terminiello, who was later convicted of disorderly conduct<\/a>. He challenged the conviction on First Amendment grounds.<\/p>\n

The Court overturned the conviction, explaining that the state can\u2019t shut down speech because the audience finds it offensive. There is no \u201checkler\u2019s veto\u201d for controversial speech.<\/p>\n

The government, indeed, has an interest in maintaining public order and safety<\/a>. This state interest includes dealing with violent and unruly crowds. However, this interest must be balanced against First Amendment speech protections.<\/p>\n

Thus, a controversial speaker can\u2019t be penalized for saying things an audience doesn\u2019t like. The Terminiello <\/i>Court reminded that a \u201cfunction of free speech under our system of government is to invite dispute.\u201d<\/p>\n

Political Speech\/Hate Speech<\/h2>\n

Political speech and advocacy often involve riling up an audience. They are often accompanied by stirring and emotional appeals to unite and act for or against a common cause.<\/p>\n

If such appeals don\u2019t incite lawless action<\/a>, they must be considered speech protected by the First Amendment<\/a>.<\/p>\n

Quoting Justice Holmes\u2019s famous dissent in <\/i>United States v. Schwimmer<\/i><\/a> <\/i>(1929),<\/i> Justice Samuel Alito wrote in Matal v. Tam<\/i><\/a> <\/i>(2017) that \u201cthe proudest boast of our free speech jurisprudence is that we protect the freedom to express \u2018the thought that we hate.\u2019\u201d<\/p>\n

Accordingly, federal courts have held that the First Amendment protected the free speech rights of Nazis. After all, the unfettered exchange of ideas and public debate involving conflicting opinions is at the heart of free speech.<\/p>\n

Hate speech is protected under the First Amendment unless it falls under another category of unprotected speech. However, hate speech that causes tangible harm is generally punishable as a hate crime<\/a>.<\/p>\n

True Threats<\/h2>\n

In 1969, the Court distinguished true threats from political hyperbole in Watts v. United States<\/i><\/a>. The Watts<\/i> Court reviewed Robert Watts\u2019s federal conviction. The relevant law criminalized any threat to kill or cause bodily harm to the American President.<\/p>\n

Watts opposed the military draft for the Vietnam War. At a public rally, he told the crowd, \u201cIf they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.”<\/p>\n

The Court adhered closely to First Amendment principles when interpreting the law and overturned the conviction. It reasoned that Watts didn\u2019t actually make a true threat but rather just engaged in political hyperbole.<\/p>\n

In 2003, the Court clarified the meaning of true threats in Virginia v. Black<\/i><\/a>. The Virginia <\/i>Court reviewed a state law prohibiting cross-burning with the goal of intimidation. The Court said the state could ban intimidation as a \u201ctype of true threat\u201d if the speaker \u201cmeans to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.\u201d<\/p>\n

In light of our country\u2019s history, the Court noted that cross-burning may constitute a true threat. However, it found that one provision in the Virginia statute violated the First Amendment. It allowed cross-burning to serve as prima facie<\/i> evidence<\/a> of intent to intimidate.<\/p>\n

Cross-burnings carried out without an intent to intimidate are protected speech or expression. Thus, the provision\u2019s reach went beyond unprotected speech. The Court invalidated it for overbreadth<\/a> because the increased likelihood of prosecution under the provision chills the expression of constitutionally protected speech.<\/p>\n

Social Media<\/h2>\n

The widespread use of social media has drastically increased incidents of speech perceived as threatening.<\/p>\n

In Counterman v. Colorado<\/i><\/a> (2023), the Court addressed one such matter. The Counterman <\/i>Court also clarified the intent requirement for true threats.<\/p>\n

Billy Raymond Counterman was convicted of stalking for statements he posted to Facebook. The Court explained that the state used the wrong standard when determining whether Counterman\u2019s statements were true threats.<\/p>\n

Specifically, it had applied an objective, \u201creasonable person\u201d standard. But, the Court determined it should have used a subjective standard for intent.<\/p>\n

The Court cited other unprotected speech decisions, including New York Times v. Sullivan<\/i><\/a>. The New York Times<\/i> Court\u2019s decision established a subjective standard for proving the state of mind required for certain defamation matters.<\/p>\n

The Counterman <\/i>Court explained that the state should have used a subjective recklessness standard to evaluate whether Counterman knew or recklessly ignored that the recipient would perceive his statements as threats of violence.<\/p>\n

In other words, the state needed to demonstrate that Counterman made such statements even though he knew the recipient would perceive them as threatening. But it didn\u2019t. As a result, the Court vacated Counterman\u2019s lower court conviction.<\/p>\n

The frameworks established by the Supreme Court help identify categories of speech. This may help determine which standard of review applies. However, the Court\u2019s approach to First Amendment matters isn\u2019t purely categorical. As a result, the Court\u2019s treatment of fighting words and true threats over the years provides us with invaluable insight into First Amendment jurisprudence.<\/p>\n\n\n

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