337 U.S. 1 (1949), argued 1 Feb. 1949, decided 16 May 1949 by vote of 5 to 4; rehearing denied 13 June 1949; Douglas for the Court, Frankfurter, Vinson, Jackson in dissent. While Terminiello, a priest, was addressing a sympathetic audience inside a packed auditorium, a hostile crowd, which denounced him as anti-Semitic and pro-Fascist, gathered outside. Fearing violence, police arrested him for disorderly conduct. The Illinois courts upheld the conviction under the “fighting words” doctrine of Chaplinsky v. New Hampshire (1942), but a bare majority of the Supreme Court reversed.
Admittedly deciding the case on a “preliminary question,” Justice William O. Douglas held that the trial judge allowed a conviction upon the mere finding that Terminiello's speech had provoked anger and controversy. This violated the First Amendment standard requiring evidence of a clear and present danger of substantial violence and disorder.
All of the dissenters criticized Douglas's opinion for not directly confronting the constitutional status of emotionally charged political expression. Chief Justice Fred Vinson argued that use of “fighting words” in the proximity of a hostile audience could certainly sustain a conviction. In his lengthy dissent, Justice Robert H. Jackson emphasized that the explosive context of the case, a crowded auditorium of sympathizers and a group of angry protestors outside, made Terminiello's speech akin to the deliberate incitement of violence.
Terminiello remains a classic example of the difficulties of applying abstract First Amendment values to situations in which speakers run some risk of inflaming an unfriendly audience.
Norman L. Rosenberg