causing a disturbance, but Chaplinsky's conduct

resulted in an upheaval that blocked the

Justia › U.S. Law › U.S. Case Law › U.S. Supreme surrounding roads and caused a police officer to
Court › Opinions by Volume › Volume 315 › remove (although not arrest) him. On his way to
Chaplinsky v. New Hampshire the police station, Chaplinsky saw the town
Chaplinsky v. New Hampshire, 315 U.S. 568 marshal again and shouted at him that he was
(1942) "a God-damned racketeer" and "a damned
Fascist." This verbal assault led to his arrest.
Overview Opinions

Argued:
When he was questioned about what he had
February 5, 1942 said, Chaplinsky admitted cursing the marshal
as a racketeer and a fascist while denying that
Decided:
he had invoked the name of God. He was
March 9, 1942 convicted of violating a state law that
prohibited intentionally offensive, derisive, or
Argued: annoying speech to any person who is lawfully
in a street or public area. Appealing his fine,
February 4, 1942
Chaplinsky argued that the law violated the First
Decided: Amendment on the grounds that it was overly
vague.
March 8, 1942

Annotation
OPINIONS
PRIMARY HOLDING
Majority
The First Amendment does not protect fighting
words, which are those that inherently cause
harm or are likely to result in an immediate
Frank Murphy (Author)
disturbance.
Owen Josephus Roberts

Hugo Lafayette Black

FACTS
Stanley Forman Reed
The facts giving rise to this case have been
disputed, but this is the version that was used Felix Frankfurter
by the Court in making its decision. On a public
sidewalk in downtown Rochester, Walter William Orville Douglas
Chaplinsky was distributing literature that
Frank Murphy
supported his beliefs as a Jehovah's Witness
and attacked more conventional forms of James Francis Byrnes
religion. The town marshal warned him against
Robert Houghwout Jackson Chaplinsky v. New Hampshire

Writing for a unanimous Court, Murphy

identified certain categorical exceptions to First
Amendment protections. These included No. 255
obscenities, certain profane and slanderous
speech, and "fighting words." He found that
Chaplinsky's insults fell into the final category, Argued February 5, 1942
since they caused a direct harm to their target
and could be construed to advocate an
immediate breach of the peace. Thus, they Decided March 9, 1942
lacked the social value of disseminating ideas to
the public that lay behind the rights granted by
the First Amendment. A state can use its police
315 U.S. 568
power to curb their expression in the interests
of maintaining order and morality.

CASE COMMENTARY Syllabus

Fighting words are one of the rare categorical

exceptions to First Amendment protection,
since normally content-based restrictions on 1. That part of c. 378, § 2, of the Public Law of
speech would be invalidated unless the New Hampshire which forbids under penalty
government can meet the strict scrutiny that any person shall address "any offensive,
standard, which is rare. What exactly derisive or annoying word to any other person
constitutes fighting words is open to debate, who is lawfully in any street or other public
although words that are intended to induce an place," or "call him by any offensive or derisive
emotional response in the average person and name," was construed by the Supreme Court of
have no basis in fact are likely to fit into this the State, in this case and before this case
categorical exception. arose, as limited to the use in a public place of
words directly tending to cause a breach of the
peace by provoking the person addressed to
acts of violence.
Show Less

Syllabus
Held:

U.S. Supreme Court

(1) That, so construed, it is sufficiently definite
Chaplinsky v. New Hampshire, 315 U.S. 568
and specific to comply with requirements of
(1942)
due process of law. P. 315 U. S. 573.
 U.S. Supreme Court

(2) That, as applied to a person who, on a public Chaplinsky v. New Hampshire, 315 U.S. 568
street, addressed another as a "damned (1942)
Fascist" and a "damned racketeer," it does not
substantially or unreasonably impinge upon Chaplinsky v. New Hampshire
freedom of speech. P. 315 U.S. 574. No. 255

Argued February 5, 1942

(3) The refusal of the state court to admit Decided March 9, 1942
evidence offered by the defendant tending to
prove provocation and evidence bearing on the 315 U.S. 568
truth or falsity of the utterances charged is
APPEAL FROM THE SUPREME COURT OF NEW
open to no constitutional objection. P. 315 U.S.
HAMPSHIRE
574.
Syllabus

1. That part of c. 378, § 2, of the Public Law of

2. The Court notices judicially that the
New Hampshire which forbids under penalty
appellations "damned racketeer" and "damned
that any person shall address "any offensive,
Fascist" are epithets likely to provoke the
derisive or annoying word to any other person
average person to retaliation, and thereby
who is lawfully in any street or other public
cause a breach of the peace. P. 315 U.S. 574
place," or "call him by any offensive or derisive
name," was construed by the Supreme Court of
the State, in this case and before this case
91 N.H. 310, 18 A.2d 754, affirmed. arose, as limited to the use in a public place of
words directly tending to cause a breach of the
peace by provoking the person addressed to
APPEAL from a judgment affirming a conviction acts of violence.
under a state law denouncing the use of
offensive words when addressed by one person Held:
to another in a public place. (1) That, so construed, it is sufficiently definite
and specific to comply with requirements of
due process of law. P. 315 U. S. 573.
Page 315 U. S. 569
(2) That, as applied to a person who, on a public
street, addressed another as a "damned
Fascist" and a "damned racketeer," it does not
Show Less substantially or unreasonably impinge upon
Opinions freedom of speech. P. 315 U.S. 574.

Opinions & Dissents

(3) The refusal of the state court to admit Street, near unto the entrance of the City Hall,
evidence offered by the defendant tending to did unlawfully repeat the words following,
prove provocation and evidence bearing on the addressed to the complainant, that is to say,
truth or falsity of the utterances charged is 'You are a God damned racketeer' and 'a
open to no constitutional objection. P. 315 U.S. damned Fascist and the whole government of
574. Rochester are Fascists or agents of Fascists,' the
same being offensive, derisive and annoying
2. The Court notices judicially that the words and names."
appellations "damned racketeer" and "damned
Fascist" are epithets likely to provoke the Upon appeal, there was a trial de novo of
average person to retaliation, and thereby appellant before a jury in the Superior Court. He
cause a breach of the peace. P. 315 U.S. 574 was found guilty, and the judgment of
conviction was affirmed by the Supreme Court
91 N.H. 310, 18 A.2d 754, affirmed. of the State. 91 N.H. 310, 18 A.2d 754.
APPEAL from a judgment affirming a conviction By motions and exceptions, appellant raised the
under a state law denouncing the use of questions that the statute was invalid under the
offensive words when addressed by one person Fourteenth Amendment of the Constitution of
to another in a public place. the United States in that it placed an
Page 315 U. S. 569 unreasonable restraint on freedom of speech,
freedom of the press, and freedom of worship,
MR. JUSTICE MURPHY delivered the opinion of and because it was vague and indefinite. These
the Court. contentions were overruled, and the case
comes here on appeal.
Appellant, a member of the sect known as
Jehovah's Witnesses, was convicted in the There is no substantial dispute over the facts.
municipal court of Rochester, New Hampshire, Chaplinsky was distributing the literature of his
for violation of Chapter 378, § 2, of the Public sect on the streets
Laws of New Hampshire:
Page 315 U. S. 570
"No person shall address any offensive, derisive
or annoying word to any other person who is of Rochester on a busy Saturday afternoon.
lawfully in any street or other public place, nor Members of the local citizenry complained to
call him by any offensive or derisive name, nor the City Marshal, Bowering, that Chaplinsky was
make any noise or exclamation in his presence denouncing all religion as a "racket." Bowering
and hearing with intent to deride, offend or told them that Chaplinsky was lawfully engaged,
annoy him, or to prevent him from pursuing his and then warned Chaplinsky that the crowd was
lawful business or occupation." getting restless. Some time later, a disturbance
occurred and the traffic officer on duty at the
The complaint charged that appellant, busy intersection started with Chaplinsky for
the police station, but did not inform him that
"with force and arms, in a certain public place in
he was under arrest or that he was going to be
said city of Rochester, to-wit, on the public
arrested. On the way, they encountered
sidewalk on the easterly side of Wakefield
Marshal Bowering, who had been advised that a Appellant assails the statute as a violation of all
riot was under way and was therefore hurrying three freedoms, speech, press and worship, but
to the scene. Bowering repeated his earlier only an attack on the basis of free speech is
warning to Chaplinsky, who then addressed to warranted. The spoken, not the written, word is
Bowering the words set forth in the complaint. involved. And we cannot conceive that cursing a
public officer is the exercise of religion in any
Chaplinsky's version of the affair was slightly sense of the term. But even if the activities of
different. He testified that, when he met the appellant which preceded the incident
Bowering, he asked him to arrest the ones could be viewed as religious in character, and
responsible for the disturbance. In reply, therefore entitled to the protection of the
Bowering cursed him and told him to come Fourteenth Amendment, they would not cloak
along. Appellant admitted that he said the him with immunity from the legal consequences
words charged in the complaint, with the for concomitant acts committed in violation of a
exception of the name of the Deity. valid criminal statute. We turn, therefore, to an
Over appellant's objection, the trial court examination of the statute itself.
excluded, as immaterial, testimony relating to Allowing the broadest scope to the language
appellant's mission "to preach the true facts of and purpose of the Fourteenth Amendment, it
the Bible," his treatment at the hands of the is well understood that the right of free speech
crowd, and the alleged neglect of duty on the is not absolute at all times and under all
part of the police. This action was approved by circumstances. [Footnote 2] There are certain
the court below, which held that neither well defined and narrowly limited classes of
provocation nor the truth of the utterance speech, the prevention
would constitute a defense to the charge.
Page 315 U. S. 572
It is now clear that
and punishment of which have never been
"Freedom of speech and freedom of the press, thought to raise any Constitutional problem.
which are protected by the First Amendment [Footnote 3] These include the lewd and
from infringement by Congress, are among the obscene, the profane, the libelous, and the
fundamental personal rights and liberties which insulting or "fighting" words -- those which, by
are protected by the Fourteenth Amendment their very utterance, inflict injury or tend to
from invasion by state incite an immediate breach of the peace.
Page 315 U. S. 571 [Footnote 4] It has been well observed that
such utterances are no essential part of any
action." exposition of ideas, and are of such slight social
value as a step to truth that any benefit that
Lovell v. Griffin, 303 U. S. 444, 303 U. S. 450.
may be derived from them is clearly
[Footnote 1] Freedom of worship is similarly
outweighed by the social interest in order and
sheltered. Cantwell v. Connecticut, 310 U. S.
morality. [Footnote 5]
296, 310 U. S. 303.
"Resort to epithets or personal abuse is not in
any proper sense communication of
information or opinion safeguarded by the profane or obscene revilings. Derisive and
Constitution, and its punishment as a criminal annoying words can be taken as coming within
act would raise no question under that the purview of the statute as heretofore
instrument." interpreted only when they have this
characteristic of plainly tending to excite the
Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. addressee to a breach of the peace. . . . The
309-310. statute, as construed, does no more than
The state statute here challenged comes to us prohibit the face-to-face words plainly likely to
authoritatively construed by the highest court cause a breach of the peace by the addressee,
of New Hampshire. It has two provisions -- the words whose speaking constitutes a breach of
first relates to words or names addressed to the peace by the speaker -- including 'classical
another in a public place; the second refers to fighting words,' words in current use less
noises and exclamations. The court said: 'classical' but equally likely to cause violence,
and other disorderly words, including profanity,
"The two provisions are distinct. One may stand obscenity and threats."
separately from the other. Assuming, without
holding, that the second were unconstitutional, We are unable to say that the limited scope of
the first could stand if constitutional." the statute as thus construed contravenes the
Constitutional right of free expression. It is a
We accept that construction of severability and statute narrowly drawn and limited to define
limit our consideration to the first provision of and punish specific conduct lying within the
the statute. [Footnote 6] domain of state power, the use in a public place
of words likely to cause a breach of the peace.
Page 315 U. S. 573
Cf. Cantwell v. Connecticut, 310 U. S. 296, 310
On the authority of its earlier decisions, the U. S. 311; Thornhill v. Alabama,
state court declared that the statute's purpose
Page 315 U. S. 574
was to preserve the public peace, no words
being "forbidden except such as have a direct 310 U. S. 88, 310 U. S. 105. This conclusion
tendency to cause acts of violence by the necessarily disposes of appellant's contention
persons to whom, individually, the remark is that the statute is so vague and indefinite as to
addressed." [Footnote 7] It was further said: render a conviction thereunder a violation of
due process. A statute punishing verbal acts,
"The word 'offensive' is not to be defined in
carefully drawn so as not unduly to impair
terms of what a particular addressee thinks. . . .
liberty of expression, is not too vague for a
The test is what men of common intelligence
criminal law. Cf. Fox v. Washington 236 U.S.
would understand would be words likely to
273, 236 U. S. 277. [Footnote 8]
cause an average addressee to fight. . . . The
English language has a number of words and Nor can we say that the application of the
expressions which, by general consent, are statute to the facts disclosed by the record
'fighting words' when said without a disarming substantially or unreasonably impinges upon
smile. . . . [S]uch words, as ordinary men know, the privilege of free speech. Argument is
are likely to cause a fight. So are threatening, unnecessary to demonstrate that the
appellations "damned racketeer" and "damned 353; Herndon v. Lowry, 301 U. S. 242; Cantwell
Fascist" are epithets likely to provoke the v. Connecticut, 310 U. S. 296.
average person to retaliation, and thereby
cause a breach of the peace. [Footnote 3]

The refusal of the state court to admit evidence The protection of the First Amendment,
of provocation and evidence bearing on the mirrored in the Fourteenth, is not limited to the
truth or falsity of the utterances is open to no Blackstonian idea that freedom of the press
Constitutional objection. Whether the facts means only freedom from restraint prior to
sought to be proved by such evidence publication. Near v. Minnesota, 283 U. S. 697,
constitute a defense to the charge, or may be 283 U. S. 714-715.
shown in mitigation, are questions for the state [Footnote 4]
court to determine. Our function is fulfilled by a
determination that the challenged statute, on Chafee, Free Speech in the United States
its face and as applied, doe not contravene the (1941), 149.
Fourteenth Amendment.
[Footnote 5]
Affirmed.
Chafee, op. cit., 150.
[Footnote 1]
[Footnote 6]
See also Bridges v. California, 314 U. S. 252;
Since the complaint charged appellant only with
Cantwell v. Connecticut, 310 U. S. 296, 310 U. S.
violating the first provision of the statute, the
303; Thornhill v. Alabama, 310 U. S. 88, 310 U.
problem of Stromberg v. California, 283 U. S.
S. 95; Schneider v. State, 308 U. S. 147, 308 U. S.
359, is not present.
160; De Jonge v. Oregon, 299 U. S. 353, 299 U.
S. 364; Grosjean v. American Press Co., 297 U. S. [Footnote 7]
233, 297 U. S. 243; Near v. Minnesota, 283 U. S.
697, 283 U. S. 707; Stromberg v. California, 283 State v. Brown, 68 N.H. 200, 38 A. 731; State v.
U. S. 359, 283 U. S. 368; Whitney v. California, McConnell, 70 N.H. 294, 47 A. 267.
274 U. S. 357, 274 U. S. 362, 274 U. S. 371, 274
[Footnote 8]
U. S. 373; Gitlow v. New York, 268 U. S. 652, 268
U. S. 666. We do not have here the problem of Lanzetta v.
New Jersey, 306 U. S. 451. Even if the
Appellant here pitches his argument on the due
interpretative gloss placed on the statute by the
process clause of the Fourteenth Amendment.
court below be disregarded, the statute had
[Footnote 2] been previously construed as intended to
preserve the public peace by punishing conduct
Schenck v. United States, 249 U. S. 47; Whitney the direct tendency of which was to provoke
v. California, 274 U. S. 357, 274 U. S. 373 the person against whom it was directed to acts
(Brandeis, J., concurring); Stromberg v. of violence. State v. Brown, 68 N.H. 200, 38 A.
California, 283 U. S. 359; Near v. Minnesota, 731 (1894).
283 U. S. 697; De Jonge v. Oregon, 299 U. S.