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Paideia

Abstract

The notion of “fighting words” was established in the benchmark case Chaplinsky v. New Hampshire, which chronicled how Chaplinsky, a proselytizing Jehovah’s witness, called the city marshal a “God damned racketeer” and a “damned fascist,” and was convicted for violating a state statute forbidding individuals from addressing others in an offensive way. The New Hampshire statute and the Chaplinsky ruling established a new framework for classifying speech as fighting words, which are not constitutionally protected speech. For speech to be considered fighting words, it must satisfy three criteria: The speech must be individually addressed and incite immediate violence in an average addressee. This essay explores the fighting words doctrine as presently constructed, determines that the criterion regarding an “average addressee” is particularly problematic, and suggests that the doctrine be altered to include specific demographics such as race. First, opposing viewpoints in favor of the current doctrine, including maintaining a high level of protection of free speech and avoiding issues regarding content-based speech restrictions, are discussed. These arguments are rebutted to conclude that the doctrine has only adverse effects. The latter portion of the essay argues that the case Miller v. California provides legal precedent for altering the fighting words doctrine, so that specific contexts are considered. It also contends that doing so aligns with both the contemporary social zeitgeist and the state’s key interests.

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