Fighting words are, as first defined by the Supreme Court (SCOTUS) in Chaplinsky v New Hampshire, 315 U.S. 568 (1942), words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace. ... Fighting words are a category of speech that is unprotected by the First Amendment.
Why are fighting words not protected by the First Amendment?
The fighting words doctrine, as originally announced in Chaplinsky, found that two types of speech were not protected—words that by their very utterance inflict injury, and speech that incites an immediate breach of the peace.
Is hate speech considered fighting words?
The form of punishable hate speech considered to encompass fighting words is identified in Section 319: ... Everyone 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.
Exceptions to free speech in the United States refers to categories of speech that are not protected by the First Amendment. According to the Supreme Court of the United States, the U.S. Constitution protects free speech while allowing for limitations on certain categories of speech.
Categories of speech that are given lesser or no protection by the First Amendment (and therefore may be restricted) include obscenity, fraud, child pornography, speech integral to illegal conduct, speech that incites imminent lawless action, speech that violates intellectual property law, true threats, and commercial speech such as advertising.
Along with communicative restrictions, less protection is afforded for uninhibited speech when the government acts as subsidizer or speaker, is an employer, controls education, or regulates the mail, airwaves, legal bar, military, prisons, and immigration.
The Supreme Court has held that "advocacy of the use of force" is unprotected when it is "directed to inciting or producing imminent lawless action" and is "likely to incite or produce such action". In Brandenburg v. Ohio (1969), the Supreme Court unanimously reversed the conviction of a Ku Klux Klan group for "advocating ... violence ... as a means of accomplishing political reform" because their statements at a rally did not express an immediate, or imminent intent, to do violence. This decision overruled Schenck v. United States (1919), which held that a "clear and present danger" could justify a law limiting speech. The primary distinction is that the latter test does not criminalize "mere advocacy".
2- False statements of fact
In Gertz v. Robert Welch, Inc. (1974), the Supreme Court decided that there is "no constitutional value in false statements of fact". However, this is not a concrete rule as the Court has struggled with how much of the "speech that matters" can be put at risk in order to punish a falsehood.
The Supreme Court has established a complex framework for determining which types of false statements are unprotected. There are four such areas which the Court has been explicit about. First, false statements of fact that are said with a "sufficiently culpable mental state" can be subject to civil or criminal liability. Second, knowingly making a false statement of fact can sometimes be punished. Libel and slander laws fall under this category. Third, negligently false statements of fact may lead to civil liability in some instances. Lastly, some implicit statements of fact—those that have a "false factual connotation"—can also fall under this exception.
There is also a fifth category of analysis. It is possible that some completely false statements could be entirely free from punishment. The Supreme Court held in the landmark case New York Times v. Sullivan (1964) that lies about the government may be protected completely. However, this category is not entirely clear, as the question of whether false historical or medical claims are protected is still disputed.
In addition, false statements made under penalty of perjury are subject to legal sanctions if they are judged to be material.
3- Fighting words
A Westboro Baptist Church protest was the subject of an "offensive speech" Supreme Court case in Snyder v. Phelps (2010)
In Chaplinsky v. New Hampshire (1942), the Supreme Court held that speech is unprotected if it constitutes "fighting words". Fighting words, as defined by the Court, is speech that "tends to incite an immediate breach of the peace" by provoking a fight, so long as it is a "personally abusive [word] which, when addressed to the ordinary citizen, is, as a matter of common knowledge, inherently likely to provoke a violent reaction". Additionally, such speech must be "directed to the person of the hearer" and is "thus likely to be seen as a 'direct personal insult'".
“True threats of violence” that are directed at a person or group of persons that have the intent of placing the target at risk of bodily harm or death are generally unprotected. However, there are several exceptions. For example, the Supreme Court has held that "threats may not be punished if a reasonable person would understand them as obvious hyperbole", he writes. Additionally, threats of "social ostracism" and of "politically motivated boycotts" are constitutionally protected.
4- Threatening the President of the United States
("Hang Mike Pence!" chanted by MAGA Protestors)
Under Title 18 Section 871 of the United States Code it is illegal to knowingly and willfully make "any threat to take the life of, to kidnap, or to inflict bodily harm upon the president of the United States." This also applies to any "President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect." This law is distinct from other forms of true threats because the threatener does not need to have the actual capability to carry out the threat, meaning prisoners can also be charged.