Fighting Words Doctrine
The “fighting words” doctrine encompasses direct, scurrilous verbal abuse of an individual or small group likely to incite an immediate breach of the peace. “Fighting words” are “`personally abusive epithets’ and not merely [words that are deemed] a socially unacceptable mode of communication.” State v. Authelet, 385 A.2d 642 (R.I. 1978).
The evidence must establish that the personally abusive utterance itself “tends to incite an immediate breach of the peace,” Lewis v. City of New Orleans, 415 U.S. 130, 132 (1974) (citation omitted); is “inherently likely to provide violent reaction,” Cohen, 403 U.S. at 20; or is “likely to provoke a violent reaction and retaliation.” Mercer, 214 Va. at 284, 199 S.E.2d at 726.
Holding that ordinance prohibiting constitutionally unprotected “fighting words” was unconstitutional insofar as it only applied to “fighting words” that insult or provoke violence “on the basis of race, color, creed, religion or gender” R.A.V. v. St. Paul 505 U.S. 377 (1992)
Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words — “fighting” words — “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, supra, at 572. In Chaplinsky, we sustained a conviction under Chapter 378, § 2, of the Public Laws of New Hampshire, which provided: “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name . . . .” Chaplinsky was convicted for addressing to another on a public sidewalk the words, “You are a God damned racketeer,” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, “long before the words for which Chaplinsky was convicted,” sharply limited the statutory language “offensive, derisive or annoying word” to “fighting” words”. Gooding v. Wilson 405 U.S. 518 (1972)
Finding verbal protestations, where not obscene or in the nature of “fighting words,” to be protected by the First Amendment. To the extent the ordinance could be interpreted to ban fighting words, it is pre-empted by Tex. Penal Code Ann. § 1.08 (1974), which preempts municipal laws that prohibit conduct subject to penalty under the Code, see supra, at 460-461, and by § 42.01, the State’s comprehensive disorderly conduct provision. Subsection § 42.01(a)(1), which makes unlawful “abusive, indecent, profane or vulgar language” only if “by its very utterance [it] tends to incite an immediate breach of the peace,” prohibits the use of fighting words. The “practice commentary” in the annotated Code confirms that this section is designed to track the “fighting words” exception set forth in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Tex. Penal Code Ann. § 42.01, pp. 124-125 (1974 and Supp. 1987). Houston v. Hill 482 U.S. 451 (1987)
Quite apart from the ambiguity inherent in the term “opprobrious,” words may or may not be “fighting words,” depending upon the circumstances of their utterance. It is unlikely, for example, that the words said to have been used here would have precipitated a physical confrontation between the middle-aged woman who spoke them and the police officer in whose presence they were uttered. The words may well have conveyed anger and frustration without provoking a violent reaction from the officer. Moreover, as noted in my previous concurrence, a properly trained officer may reasonably be expected to “exercise a higher degree of restraint” than the average citizen, and thus be less likely to respond belligerently to “fighting words.” 408 U.S. 913. See Model Penal Code § 250.1, Comment 4 (Tent. Draft No. 13, 1961). Lewis v. City of New Orleans 415 U.S. 130 (1974)
Upon this record, we are convinced that petitioner was arrested and convicted merely because he verbally and negatively protested Officer Johnson’s treatment of him. Surely, one is not to be punished for nonprovocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer. Regardless of what the motivation may have been behind the expression in this case, it is clear that there was no abusive language or fighting words. If there had been, we would have a different case. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). N orwell v. City of Cincinnati 414 U.S. 14 (1973)