Why aren't 'fighting words' free speech?

On his way to "the point of trouble," Kenison said, Bowering "met two officers" who were taking Chaplinsky to the police station "more for his protection than for arrest." Bowering "reminded" Chaplinsky of "his earlier warning" that "the people might get out of hand if he continued using the language he had with reference to their faith and priests." At that point, according to Kenison, Chaplinsky spoke the words that changed his protective custody into an arrest.

"You are a God-damned racketeer" and "damned fascist," Chaplinsky allegedly said, adding that "the whole government of Rochester are fascists or agents of fascists." Those "offensive, derisive and annoying words and names," Kenison explained, were a crime under New Hampshire law.

That crime earned Chaplinsky a six-month jail sentence, which the New Hampshire Supreme Court unanimously approved in March 1941, rejecting the preacher's argument that his prosecution violated the First Amendment. A year later, the U.S. Supreme Court unanimously agreed that Chaplinsky had no right to call Bowering a "racketeer" and a "fascist." To reach that conclusion, the justices invented a new, hazily defined exception to the First Amendment that would-be censors are still invoking more than eight decades later.

Freedom of speech, the justices ruled in Chaplinsky v. New Hampshire, does not apply to "'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." After formulating that vague and potentially sweeping rule, the Supreme Court never again relied on it to uphold a criminal conviction. But the Court has not explicitly repudiated the doctrine, which continues to influence lower-court decisions—often involving defendants who, like Chaplinsky, were arrested for talking back to the police.

The "fighting words" doctrine also figures in contemporary political debates about the constitutionality of punishing people for offensive speech. President Donald Trump explicitly invoked the doctrine last August, when he instructed Attorney General Pam Bondi to "prioritize" the prosecution of flag burners. Bondi herself alluded to the "fighting words" exception after the September 10 assassination of conservative activist Charlie Kirk. Drawing an erroneous constitutional distinction between "free speech" and "hate speech," she warned that the Justice Department "will absolutely target you, go after you, if you are targeting anyone with hate speech."