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The Bill of Rights, 2nd Edition

Chaplinsky v. New Hampshire

by Thomas Tandy Lewis

Citation: 315 U.S. 568

Announced: March 9, 1942

Issues: Freedom of speech; Fighting words

Relevant Amendment: First

Brief Summary: The Supreme Court upheld a man’s conviction for derisive speech or name calling in public, reasoning that “fighting words” were not subject to First Amendment protection.

In 1940, Walter Chaplinsky, a Jehovah’s Witness, was preaching on a public sidewalk in Rochester, New Hampshire. He was passing out pamphlets and denouncing other religious beliefs. As a result, an angry crowd blocked the road, causing a minor disturbance. When the town marshal intervened, Chaplinsky denounced him as “a God-damned racketeer” and “a damned Fascist.” He was arrested, prosecuted, and assessed a fine under a New Hampshire statute that made it illegal for a person to address “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place...or to call him by an offensive or derisive name.” Chaplinsky appealed the fine, claiming that the law infringed upon his rights to free speech under the First and Fourteenth Amendments.

The U.S. Supreme Court unanimously held that that both Chaplinsky’s conviction and the statute were consistent with the U.S. Constitution. In the opinion for the Court, Justice Frank Murphy wrote that the right to free speech is not absolute: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Any value that such words might have was outweighed by an interest in social order and morality. The epithets “damned racketeer” and “damned Fascist,” moreover, were “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”

Murphy’s opinion established a two-tier theory (or double standard) in cases dealing with free speech under the First Amendment. The Chaplinsky decision has never been overturned, although it was the last case in which the Court upheld a conviction for the use of fighting words. Subsequent decisions have significantly limited Chaplinsky’s reach. In Cohen v. California (1971), for example, the Court held that a jacket with the words “Fuck the Draft” did not constitute fighting words because it was unlikely to provoke an immediate hostile reaction. In Texas v. Johnson (1989), the Court did not accept that the possibility of violence provides justification for a law against flag desecration. Nevertheless, the Court has continued to endorse Murphy’s two principles: (1) that there is a category of speech that constitutes “fighting words,” and (2) that particular categories of speech are not protected by the First Amendment.

Universities have often referred to Chaplinsky when attempting to justify speech codes that forbid insults and epithets relating to race, gender, and sexual orientation. Such codes have almost always been ruled unconstitutional, but many state courts have cited Chaplinsky in upholding charges of disorderly conduct, harassment, or breach-of-the-peace.

Citation Types

Type
Format
MLA 9th
Lewis, Thomas Tandy. "Chaplinsky V. New Hampshire." The Bill of Rights, 2nd Edition, edited by Thomas Tandy Lewis, Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=BOR2e_0208.
APA 7th
Lewis, T. T. (2017). Chaplinsky v. New Hampshire. In T. T. Lewis (Ed.), The Bill of Rights, 2nd Edition. Salem Press. online.salempress.com.
CMOS 17th
Lewis, Thomas Tandy. "Chaplinsky V. New Hampshire." Edited by Thomas Tandy Lewis. The Bill of Rights, 2nd Edition. Hackensack: Salem Press, 2017. Accessed December 14, 2025. online.salempress.com.