Chaplinsky v. State of New Hampshire
315 U.S. 568 (1942)
Briefed by Paul Dorres & Joanna Means
Basic Facts of the Case:
Chaplinsky, a member of the Jehovah’s Witnesses, was distributing literature about his sect on
Rochester public streets on a Saturday afternoon in November, 1941. Citizens complained to the
City Marshal, Bowering, that Chaplinsky was calling all religion a “racket”. Bowering informed
the people that Chaplinsky was within his rights and then advised Chaplinsky that the crowd was
becoming restless. A little while later there was a disturbance, and the traffic officer on duty at
the nearby intersection started taking Chaplinsky to the station. Marshal Bowering, responding
to the disturbance (he’d been advised that there was a riot), intercepted Chaplinsky with the
traffic officer on the way to the scene. Bowering repeated his earlier warning, which was when
Chaplinsky addressed Bowering with, “You are a God damned racketeer” and “a damned Fascist
and the whole government of Rochester are Fascists or agents of Fascists.”
Chaplinsky’s version of the facts was quite similar, except for the following: that he asked
Bowering to arrest those responsible, Bowering then cursed him and told him to go with
Bowering, and that Chaplinsky said all those things except the word “God”.
Chaplinsky was arrested and charged with violating a state statute, which states:
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, nor make any noise or exclamation in his presence
and hearing with intent to deride, offend or annoy him, or to prevent him from
pursuing his lawful business or occupation. (Chapter 378, Section 2, of the Public
Laws of New Hampshire)
Issues raised in the Case:
Is speech that incites a breach of the peace protected by the First Amendment?
Or in other words: Does the application of the state statute violate Chaplinsky's freedom of
speech protected by the First Amendment?
The Decision:
Justice Murphy wrote the majority opinion for the court, which was supported 9-0 (there were no
concurring opinions written). The court held that the state statute restricting speech was specific
enough that it complied with the requirements of due process and did not unreasonably impinge
on Chaplinsky’s First Amendment rights to free speech. Therefore it did not violate the
Fourteenth Amendment.
Rationale of the Court:
Although Chaplinsky protested that the statute violated all three of the First Amendment
freedoms (speech, press, and religion), the court found that only the free speech part applied.
Chaplinsky was not charged for the religious content of his speech or for the flyers he’d been
handing out, only for the remarks to Marshall Bowering. The court recognized that the right to
free speech was not unlimited. They found that the following types of speech were not protected
by the First Amendment: “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.” Such speech is deemed worthless, or of little use with regard to
social values, as it does not contribute to the formation of ideas or discovery of truth – the speech
is simply unproductive.
The state statue was not deemed too restrictive because it explains that only words with a
tendency to incite violence are not protected. The test of this is whether the average person
would consider these words likely to cause a fight. For this reason, this case is popularly known
for establishing the “fighting words” precedent.
Procedural History and Background:
Chaplinsky was first convicted in a municipal court in New Hampshire for violating state law
regarding offensive speech used in public. FAIL. He appealed and the case was brought to the
Superior Court, where it was tried de novo by jury and he was convicted. Upon appeal, the State
Supreme Court upheld the conviction of the Superior Court. Chaplinsky failed… again, which is
when he appealed to the national court of last resort. And again … FAIL. Chaplinsky 0, USA 4.
That’s game folks.
Other Notes, Comments, and Questions:
Free speech is not unlimited.
Important to consider “fighting words” in terms of how the words would be perceived
in that context (i.e. “Fascist” may not be considered fighting words today, but in the
middle of WWII, it was probably quite the insult).
How and when does the Fourteenth Amendment provide a reasonable avenue for
contesting state statutes (and therefore restrictions on free speech at public
institutions)?
Interpretation of language, tone, place, context, and who the language is directed at
are all important factors to take into consideration when determining whether speech
is protected.
Categories of Speech from Chaplinsky (http://www.comm.unt.edu/faculty/gossett/chaplinsky_v.htm)
Worthwhile Speech
Expression that has social value as a step to truth (news reports, editorial/opinion columns,
speeches on social issues, political debates, etc.)
Worthless Speech
Expression that has little, if any, social value as a step to truth
1. The lewd, obscene, and profane
2. Slander and libel
3. Insulting or "fighting" words
a. offensive language, even if it does not provoke a fight (later discarded by the Court in
Cohen)
b. fight-provoking language that tends to incite violence (retained by the Court)
"The test is what ... [persons] of common intelligence would understand would be words and
expressions which by general consent are 'fighting words' when said without a disarming smile. .
. . Such words, as ordinary ... [persons] know, are likely to cause a fight." (Murphy at p. 573)