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Chaplinsky v. New Hampshire (1942)

Chaplinsky v. New Hampshire (1942). The law: prevent “offensive, derisive, and annoying speech” in public places… Can “fighting words” be exempted from First Amendment protection?

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Chaplinsky v. New Hampshire (1942)

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  1. Chaplinsky v. New Hampshire (1942) • The law: prevent “offensive, derisive, and annoying speech” in public places… • Can “fighting words” be exempted from First Amendment protection? • Yes! “It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality…”

  2. Chaplinsky analyzed • Murphy’s decision is premised on: • speech gets protected based on its ability to aid in the search for truth…if they are not ideas, there is no speech… • exceptions based on promoting order, tranquility, and civility… • Fighting words defined as those 1) that tend to incite an immediate breach of the peace, and those 2) by their very utterance inflict injury...

  3. Chipping away at Chaplinsky • Categorical exceptions: “There are certain well designed and narrowly limited classes of speech, the prevention and punishment of which have never thought to raise any Constitutional problem.” • Terminiello v. Chicago:”A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”

  4. Cohen’s Jacket (Cohen v. California, 1971) • Cohen is vindicated, why? • no violence resulted • no directed to a specific person or group • no captive audience, folks should just “avert their eyes” • The SC discovers communication theory: “…much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise detached explication, but otherwise inexpressible emotions as well.”

  5. Gooding (1972) and the “motherfucker” cases • The Court narrows Chaplinsky by specifying that the banned words must be likely to provoke a response “from the person addressed.”--Gooding v. Wilson • Fighting words dependent on context, cops arguably must meet a higher standard, they are trained to exercise a higher degree of restraint than the average citizen (Rosenfield, Brown, Lewis)

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