Chaplinsky v. New Hampshire

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315 U.S. 568 (1942), argued 5 Feb. 1942, decided 9 Mar. 1942 by vote of 9 to 0; Murphy for the Court. While distributing religious pamphlets for Jehovah's Witnesses, Chaplinsky attracted a hostile crowd. When a city marshal intervened, Chaplinsky denounced him as a “racketeer” and a “Fascist” and called other officials “agents of Fascists.” The Court upheld Chaplinsky's conviction for violating a state law against offensive and derisive speech or name-calling in public.

Justice Frank Murphy advanced a “two-tier theory” of the First Amendment. Certain “well-defined and narrowly limited” categories of speech fall outside the bounds of constitutional protection. Thus, “the lewd and obscene, the profane, the libelous,” and (in this case) insulting or “fighting” words neither contributed to the expression of ideas nor possessed any “social value” in the search for truth (pp. 571–572).

This two-tier approach retains importance for those who believe that carefully crafted controls over certain categories of speech (such as pornography, commercial advertising, or abusive epithets) do not violate First Amendment guarantees. Although the Court continues to cite Chaplinsky's position on “fighting words” approvingly, subsequent cases have largely eroded its initial, broad formulation; libelous publications and even verbal challenges to police officers have come to enjoy some constitutional protection. Chaplinsky remains the last case in which the Court explicitly upheld a conviction only for “fighting words” directed at public officials.

Norman L. Rosenberg

Subjects: Law.

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