Fighting words

Fighting words are written or spoken words intended to incite hatred or violence from their target. Specific definitions, freedoms, and limitations of fighting words vary by jurisdiction. It is also used in a general sense of words that when uttered tend to create (deliberately or not) a verbal or physical confrontation by their mere usage.

For the Canadian television series, see Fighting Words (TV series).

Canada

In Canada, freedom of speech is generally protected under Section 2 of Canadian Charter of Rights and Freedoms. The Criminal Code, however, limits these freedoms and provides for several forms of punishable hate speech. The form of punishable hate speech considered to encompass fighting words is identified in Section 319:[1]

Public incitement of hatred. Every one who, by communicating statements in a public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of [a crime].

— s. 319[1], Criminal Code[2]

United States

The fighting words doctrine, in United States constitutional law, is a limitation to freedom of speech as protected by the First Amendment to the United States Constitution.

In 1942, the U.S. Supreme Court established the doctrine by a 9–0 decision in Chaplinsky v. New Hampshire.[3] It held that "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem."

Chaplinsky decision

Chaplinsky, a Jehovah's Witness, had purportedly told a New Hampshire town marshal who was attempting to prevent him from preaching that he was "a damned racketeer" and "a damned fascist" and was arrested. The court upheld the arrest and wrote in its decision that

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have 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.

— Chaplinsky v. New Hampshire, 1942[3]

Post-Chaplinsky

The court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In Street v. New York (1969),[4] the court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere offensiveness does not qualify as "fighting words". In similar manner, in Cohen v. California (1971), Cohen's wearing a jacket that said "fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets".

In Brandenburg v. Ohio (1969), even vile speech such as "Bury the niggers" and "Send the Jews back to Israel," was held to be protected speech under the First Amendment in a 9—0 decision. And even though the “speech” was broadcast on network television, it also did not direct to incite or produce imminent lawless action nor was it likely to produce such action.

In the 1970s, the Court held that the use of offensive and insulting language, even when directed at specific individuals, is not fighting words:

  • Gooding v. Wilson (1972): "White son of a bitch, I'll kill you."
  • Rosenfeld v. New Jersey (1972): "motherfucker."
  • Lewis v. New Orleans (1972): "god damn mother fucker."
  • Brown v. Oklahoma (1972): "mother fucking fascist," "black mother fucking pig."

In Collin v. Smith (1978) Nazis displaying swastikas and wearing military-style uniforms marching through a community with a large Jewish population, including survivors of German concentration camps, were not using fighting words.

In R.A.V. v. City of St. Paul (1992) and Virginia v. Black (2003), the Court held that cross burning is not fighting words.

In Snyder v. Phelps (2011), It was argued that three criteria were necessary: immediacy, proximity, and instinctive (a reaction of the target, per Justice Ginsburg). Even "outrageous" and "hurtful speech" such as: “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” "Fags Doom Nations," “You’re Going to Hell,” and “God Hates You” is considered public debate, particularly when conducted on public land, and must enjoy "special" 1st Amendment protection.[5] Lone dissenting Justice Samuel Alito likened the protests of the Westboro Baptist Church members to fighting words and of a personal character, and thus not protected speech. The majority disagreed and stated that the protesters' speech was not personal but public, and that local laws which can shield funeral attendees from protesters are adequate for protecting those in times of emotional distress.

Australia

The Australian Constitution does not explicitly protect freedom of expression. However, the High Court has held that an implied freedom of political communication exists as an indispensable part of the system of representative and responsible government created by the Constitution. It operates as a freedom from government restraint, rather than a right conferred directly on individuals.[6]

In Nationwide News Pty Ltd v Wills,[7] and Australian Capital Television Pty Ltd v Commonwealth,[8] the majority of the High Court held that an implied freedom of political communication exists as an incident of the system of representative government established by the Constitution. This was reaffirmed in Unions NSW v New South Wales [2013] HCA 58.[9]

In 2004 the High Court considered the meaning of a statutory offence of using insulting words in a public place.[10] Justices Gummow and Hayne held that in the context of the section, '"abusive" and "insulting" should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation'.[11] Judge Michael Kirby employed similar reasoning.[11] Chief Justice Gleeson took a slightly different approach to the construction of the section, finding that:

It is open to parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur.[11]

This faithfully reflects the original 'fighting words' doctrine and not how it is now understood and applied by the United States Supreme Court. But, as Kent Greenawalt notes in the First Amendment context, the application of one part of the original Chaplinsky formula ('words likely to cause an average addressee to fight')[3] is problematic in important respects:

The first ambiguity concerns the persons to be counted among potential addressees: everyone, only people to whom a phrase really 'applies,' or all those likely to be angered by having the label applied to them? Someone of French origin reacts differently to being called a 'Polack' than someone of Polish origin. … Another ambiguity is how an 'average addressee' is to be conceived … [And], [c]an the same remark be punishable if directed at the one person able to respond and constitutionally protected if directed at people not able to match the speaker physically?[12]

So, even if one favours the proscription of the kinds of speech that fall within the 'fighting words' category, it is worth noting that if the original Chaplinsky formula is invoked to identify those words, its application in Australian free speech law will not be straightforward or without controversy.

Offensive language that is considered criminal in Australia

A number of criminal laws in Australia prohibit the use of offensive, obscene, abusive, insulting or indecent language in a public place.[13] One such example is section 4A of the Summary Offences Act 1988 (NSW), which prohibits the use of offensive language in, near or within hearing from a public place or school.[14] The penalty for using offensive, indecent or obscene language in Australia ranges from a small fine (for example, $660 in NSW) to up to 6 months imprisonment.

Police in a number of Australian states and territories also have the power to issue on-the-spot fines (infringement notices) for offensive language.[15] Police commonly use these offences to target four-letter words (such as 'cunt' or 'fuck' and their derivatives) uttered towards them, or in their presence.[16]

Versus incitement

Incitement is a related doctrine, allowing the government to prohibit advocacy of unlawful actions if the advocacy is both intended to and likely to cause immediate breach of the peace. In the United States, the modern standard was defined in Brandenburg v. Ohio (1969), where the Supreme Court reversed the conviction of a Ku Klux Klan leader accused of advocating violence against racial minorities and the national government. The Ohio statute under which the conviction occurred was overturned as unconstitutional because "the mere abstract teaching of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action."[17]

The difference between incitement and fighting words is subtle, focusing on the intent of the speaker. Inciting speech is characterized by the speaker's intent to make someone else the instrument of his or her unlawful will. Fighting words, by contrast, are intended to cause the hearer to react to the speaker.[18]

References
  1. Stephen Brooks, Hate Speech and the Rights Cultures of Canada and the United States
  2. Branch, Legislative Services. "Consolidated federal laws of canada, Criminal Code". laws-lois.justice.gc.ca.
  3. "Chaplinsky v. New Hampshire". 9 March 1942. Archived from the original on 5 May 2018. Retrieved 20 May 2018.
  4. "Street v. New York". LII / Legal Information Institute.
  5. "Snyder v. Phelps". Electronic Privacy Information Center. Retrieved 2013-05-27.
  6. "Freedom of information, opinion and expression | Australian Human Rights Commission". Humanrights.gov.au. Retrieved 2017-06-30.
  7. Nationwide News Pty Ltd v Wills [1992] HCA 46, (1992) 177 CLR 1, High Court (Australia).
  8. Australian Capital Television v Commonwealth [1992] HCA 45, (1992) 177 CLR 106, High Court (Australia).
  9. Unions NSW v New South Wales [2013] HCA 58, (2013) 252 CLR 530, High Court (Australia).
  10. Vagrants, Gaming and Other Offences Act 1931 (Qld) s7(1)(d).
  11. Coleman v Power [2004] HCA 39, (2004) 220 CLR 1, High Court (Australia)
  12. Kent Greenawalt, 'Insults and Epithets: Are They Protected Speech?' (1990) 42 Rutgers Law Review 287, 296–7.
  13. Methven, Elyse (2016). "'Weeds of our own making': Language ideologies, swearing and the criminal law". Law in Context. 34 (2): 117–130 [117]. SSRN 2996921.
  14. Summary Offences Act 1988 (NSW) "s4A Offenscive language". NSW Legislation.
  15. Methven, Elyse. "'A Very Expensive Lesson': Counting the Costs of Penalty Notices for Anti-social Behaviour". (2014) 26(2) Current Issues in Criminal Justice 249. Retrieved 30 June 2017.
  16. Methven, Elyse. "Dirty words? Challenging the assumptions that underpin offensive language crimes". [2012] University of Technology Sydney Law Research Series 10. Retrieved 30 June 2017.
  17. Brandenburg v. Ohio, 395 U.S. 444, 448 (1969).
  18. Guiora, Amos. Tolerating Intolerance: The Price of Protecting Extremism. New York: Oxford University Press. 2013.
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