Chaplinsky v. New Hampshire
1942
Appellant: Walter Chaplinsky
Appellee: State of New Hampshire
Appellant’s Claim: That a state law making it a crime
to call people offensive names in public violated the
right to freedom of speech.
Chief Lawyer for Appellant: Hayden C. Covington
Chief Lawyer for Appellee: Frank R. Kenison
Justices for the Court: Hugo Lafayette Black, James Francis
Byrnes, William O. Douglas, Felix Frankfurter, Robert H. Jackson,
Frank Murphy (writing for the Court), Stanley Forman Reed, Owen
Josephus Roberts, Harlan Fiske Stone
Justices Dissenting: None
Date of Decision: March 9, 1942
Decision: The law did not violate the freedom of speech
because it prohibited the use only of words that tend to
provoke violence or a breach of the peace.
Significance: The decision created categories of speech, including
“fighting words,” that are not protected by the guarantee of freedom of speech.
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A ruckus about
“rackets”
Walter Chaplinsky was a
Jehovah’s Witness who
was distributing religious
material in the streets of
Rochester, New Hampshire, on a busy Saturday
afternoon. Jehovah’s
Witnesses is a sect of
Christianity that believes
other organized religions
are evil. Chaplinsky’s
activity drew a crowd.
Some citizens complained to the city marshal, Bowering, that
Chaplinsky was likening
all religion to a “racket.”
(A racket is a dishonest
or illegal organization
that takes people’s
money.)
Associate Justice Frank Murphy.
Bowering told the
citizens that Chaplinsky
was not breaking the law,
but he also warned Chaplinsky that the crowd was getting restless. A short
time later, Bowering was informed that a riot was in progress. On his way
to check out the situation, Bowering ran into Chaplinsky, who was being
taken to the police station by a police officer. Bowering told Chaplinsky
that he had warned him earlier not to start a riot. Chaplinsky responded by
calling Bowering a “damned racketeer” and a “damned Fascist.” (A racketeer is somebody who runs a racket. A fascist is an oppressive dictator.)
Courtesy of the Library of Congress.
New Hampshire charged Chaplinsky with violating a state law that
made it a crime to call someone an “offensive” name in public. The jury
convicted Chaplinsky, and the Supreme Court of New Hampshire
affirmed, or approved, the conviction. Chaplinsky appealed to the U.S.
Supreme Court. He argued that convicting him of a crime for calling
Bowering names violated the constitutional right to freedom of speech.
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Chaplinsky
v. N e w
Hampshire
Fighting words
FREEDOM OF
SPEECH
With a unanimous decision, the Supreme Court affirmed Chaplinsky’s conviction. Writing for the Court, Justice Frank Murphy rejected Chaplinsky’s
argument that his conviction violated the right to freedom of speech.
The First Amendment says “Congress shall make no law . . .
abridging the freedom of speech.” Justice Murphy said states must recognize freedom of speech under the Due Process Clause of the Fourteenth
Amendment. Murphy said, however, “that the right of free speech is not
absolute at all times and under all circumstances.” He explained that
there are categories of speech that are not protected by the First
Amendment, including obscenity, profanity, libel, and “fighting words.”
(Obscenity is sexually offensive material. Profanity is cursing. Libel is
injuring someone’s reputation with lies.)
Justice Murphy described fighting words as words that “inflict
injury or tend to incite an immediate breach of the peace.” He said fighting words are not protected by the First Amendment because they have
almost no social value. They do not contribute meaningfully to the free
flow of ideas in society, which is what the First Amendment was
designed to protect.
Justice Murphy decided that the names “damned racketeer” and
“damned Fascist” would obviously provoke the average person to fight
and cause a breach of the peace. That meant they were fighting words
that were unprotected by the First Amendment. Chaplinsky’s conviction
for using those words did not violate the right to freedom of speech.
The Court’s position on free speech has been modified since the
Chaplinsky decision came down in 1942. Today profanity is protected by
the First Amendment. For example, in Cohen v. California (1971), the
Supreme Court reversed the conviction of a man who wore a jacket that
said “Fuck the Draft” in a courtroom. Libel also receives some First
Amendment protection. Fighting words are still unprotected, but only if
they provoke an immediate hostile reaction rather than simply tending to
cause a breach of the peace. Obscenity is still unprotected under the First
Amendment.
Suggestions for further reading
Evans, J. Edward. Freedom of Speech. Minneapolis, MN: Lerner
Publications, Inc., 1990.
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HATE SPEECH
Speech that promotes hatred toward a particular race, religion,
gender, or other group is called hate speech. Hate speech seemed
to be on the rise in the United States at the end of the twentieth
century. Many governments and universities have created laws
and rules to prohibit hate speech. They believe hate speech discourages the targeted people from participating in society as
equal citizens.
Laws prohibiting hate speech, however, may violate the First
Amendment guarantee of freedom of speech. Many feel it is dangerous for the government to outlaw speech that some or even
most people find to be offensive. It can be the first step to eliminating all free speech. Perhaps, they say, the United States
should fight hate speech by encouraging tolerance and acceptance instead of outlawing categories of speech.
Farish, Leah. The First Amendment: Freedom of Speech, Religion, and
the Press. Hillside, NJ: Enslow Publishers, Inc., 1998.
King, David C. The Right to Speak Out. Brookfield, CT: Millbrook
Press, 1997.
Klinker, Philip A. The First Amendment. Englewood Cliffs, NJ: Silver
Burdett Press, 1991.
Pascoe, Elaine. Freedom of Expression: The Right to Speak Out in
America. Brookfield, CT: Millbrook Press, 1992.
Steele, Philip, Philip Skele, and Penny Clarke. Freedom of Speech? New
York: Franklin Watts, 1997.
Zeinert, Karen. Free Speech: From Newspapers to Music Lyrics. Hillside,
NJ: Enslow Publishers, Inc., 1995.
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Chaplinsky
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Hampshire