1. Fighting Words & Hate Speech
Limits to the Freedom of Speech

2. Fighting Words
Words spoken face-to-face that are so abusive or threatening, they will likely cause imminent fight
Do not convey ideas or contribute to marketplace of ideas
Value outweighed by society’s interest in maintaining order
HOWEVER, courts rarely use fighting words doctrine today
Even offensive, provocative speech protected generally protected

3. Offensive speakers & hostile audiences
Also face-to-face speech
Police action may depend on whether audience is friendly or hostile toward speaker
Prior to 1950s, courts used “clear and present danger test”
Examined circumstances to see if clear and present danger existed
Harm didn’t have to occur immediately after speech

4. Dennis v. united states (1951)
Defendants convicted for attempting to organize U.S. Communist Party
Goal to overthrow U.S. gov’t
Instead of clear and present danger test, SCOTUS used different balancing test
Balanced right of speaker & harm speaker proposed
When speech advocated VERY serious acts, SCOTUS required less proof of clear and present danger

5. Brandenburg v. Ohio (1969)
SCOTUS began using incitement test for cases in which speaker urged audiences to take unlawful action
Allows gov’t to punish advocacy only when it provokes immediate unlawful action from audience
Audience action must be likely
Unlike clear and present danger test, incitement test requires unlawful action to be likely within short period of time

6. Hate speech
Bigoted or racist speech attacking or disparaging social or ethnic group or its members
General examples:
KKK Rally
Westboro Baptist Church
Neo-Nazis
Holocaust Deniers
Anti-Islamic Groups

7. Should Hate Speech Be Punished?
Those who support punishment for hate speech argue…
Measures should be taken due to emotional & psychological toll on victims
Hate speech = fighting words
Does not qualify for First Amendment protections
Others argue speech codes…
Are well-intentioned, but vague & difficult to enforce
Put gov’t in censorship business—favoring certain content or viewpoints & disfavoring others
Violate 1st Amendment

8. Colleges & “Safe Spaces”
Several universities have established “safe spaces”
Spaces where individuals who feel marginalized come together to communicate experiences
Cancel controversial speakers
Create rooms filled with coloring books, bubbles, Play-Doh, etc. to “recuperate”
Punish controversial speech in outdoor areas

9. Snyder v. Phelps (2011)
SCOTUS confronts issue of whether hateful speech receives First Amendment protection
Westboro Baptist Church pickets funeral of fallen Marine
Held up signs reading “Thank God for Dead Soldiers” and “America is Doomed”
Father of soldier saw tops of signs as he left funeral
Found out content of signs on news
Sued Westboro, claiming extreme emotional distress

10. Snyder v. Phelps (2011) SCOTUS sided with Westboro Baptist Church
Even though speech offensive, it was speech pertaining to public issues
Entitled highest degree of 1st Amendment protection
However, SCOTUS upheld hate crimes
Provides enhanced sentencing for bias-motivated crimes