For some time, the familiar free speech exception known as the “fighting words” doctrine has been subject to severe judicial and scholarly critique. It turns out, though, that the fighting words doctrine, in general, is neither obsolete nor in need of radical limitation. The traditionally neglected “inflict injury” prong of the fighting words doctrine can and should be vitalized, with only a minimal loss, if not an actual net gain, in promoting the basic purposes of freedom of speech in the first place. And the “reactive violence” prong can and should be relieved of its historic biases and dubious assumptions. On that basis, “reactive violence” prong cases can be more thoughtfully and realistically adjudicated. In all fighting words cases, judicial attention should be paid to the distinction between the abusive or provocative words actually used by the defendant speaker and any underlying message, including the underlying message’s naturally associated emotional fervency. Protecting the latter, in undistorted fashion, need not mean protecting the former. In most fighting words cases, any tradeoff between the value of minimal discursive civility and the values underlying freedom of undistorted speech need not be substantial.
R. George Wright
Fighting Words Today,
49 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol49/iss4/1