united-states freedom-of-speech first-amendment
What is the current standard with regards to &quot;fighting words&quot;?
<p>Since Street v. New York, the Supreme Court has significantly narrowed the grounds on which speech can be considered &quot;fighting words&quot; and thus could legally be banned.  In Collin v. Smith, SCOTUS held that Nazis marching in uniform and displaying swastikas through a neighborhood of Holocaust survivors was protected speech.  In Snyder v. Phelps, SCOTUS held that protesting against dead soldiers at their funerals, including signs that Phelps himself said were intentionally outrageous was protected speech.</p>
<p>So if I can march around a Jewish neighborhood in an SS uniform, and I can shout about how dead soldiers are burning in hell at their funerals, what <em>can't</em> I do?  What are some examples of speech that is not protected due to being classified as &quot;fighting words&quot;?</p>

<p>The content of the &quot;fighting words&quot; doctrine seems to be reduced to certain personal insults, and the term plays a minimal role in court rulings. In <a href="https://supreme.justia.com/cases/federal/us/562/443/" rel="noreferrer">Snyder v. Phelps</a>, the expression is used twice, once referring to the position of the dissent, and once in scare quotes where it is a third-generation quote from Chaplinsky (and at any rate, the conclusion was &quot;this isn't that&quot;). <a href="https://supreme.justia.com/cases/federal/us/538/343/" rel="noreferrer">Virginia v. Black</a>, 538 U.S. 343 seems to be the most recent positive invocation of the concept by SCOTUS:</p>
<blockquote>
<p>a State may punish those words &quot;which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.&quot; Chaplinsky
v. New Hampshire, supra, at 572; see also <a href="https://supreme.justia.com/cases/federal/us/505/377/#tab-opinion-1959076" rel="noreferrer">R. A. V. v. City of St.
Paul</a>, supra, at 383 (listing limited areas where the First Amendment
permits restrictions on the content of speech). <em>We have consequently
held that fighting words-&quot;those personally abusive epithets which,
when addressed to the ordinary citizen, are, as a matter of common
knowledge, inherently likely to provoke violent reaction&quot; -are
generally proscribable under the First Amendment</em>. <a href="https://supreme.justia.com/cases/federal/us/403/15/" rel="noreferrer">Cohen v. California</a>,
403 U. S. 15, 20 (1971); see also Chaplinsky v. New Hampshire</p>
</blockquote>
<p>I find are no concrete examples of epithets held to be actual &quot;fighting words&quot; from the past 50 years. In <a href="https://supreme.justia.com/cases/federal/us/315/568/" rel="noreferrer">Chaplinsky</a>, it was held that</p>
<blockquote>
<p>the appellations &quot;damned racketeer&quot; and &quot;damned Fascist&quot; are epithets
likely to provoke the average person to retaliation, and thereby cause
a breach of the peace</p>
</blockquote>
<p>There has been a steady retreat from this conclusion for almost 80 years. <a href="https://supreme.justia.com/cases/federal/us/340/315/#tab-opinion-1940045" rel="noreferrer">Feiner v. New York</a>, 340 U.S. 315 upheld a conviction for a provocative speech, making &quot;derogatory remarks concerning President Truman, the American Legion, the Mayor of Syracuse, and other local political officials&quot;. The court found that the actual effect on the crowd was what mattered, not the content of the speech, and there <em>is</em> no report of what the &quot;fighting words&quot; were. <a href="https://supreme.justia.com/cases/federal/us/491/397/" rel="noreferrer">Texas v. Johnson</a>, 491 U.S. 397 dials the fighting words concept back further, to being words &quot;likely to be seen as a direct personal insult or an invitation to exchange fisticuffs&quot; – but Johnson did not utter fighting words, so again the court did not definitively point to any actual &quot;fighting words&quot;.</p>

<p><a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3762605" rel="nofollow noreferrer">https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3762605</a></p>
<p>Here is a law review article with 15 relatively recent (compared to Chaplinsky) instances of fighting words being found by lower courts.  It also has an analysis of which words and  acts are most likely to cause a court to find fighting words.</p>
