Introduction:  One of the “unprotected categories” of speech
consists of so-called “fighting words.”  The Chaplinsky Court defined
“fighting words” as “words which by their very utterance inflict
injury or tend to incite an immediate breach of the peace.”  The
Cohen Court suggested that “fighting words” are face-to-face, and
directed at a person.  They must provoke a violent reaction—more than
just provocative.  Finally, fighting words must be intended to
provoke.  “Fighting words” receive no First Am. protection because,
like other unprotected categories (i.e., defamation, obscenity, etc.)
they are not normally part of any “dialogue” or “exposition of
ideas.”  When the government seeks to suppress speech threatening
violence, the court can employ doctrine such as the two-part
Brandenburg test.  But a court can also avoid this completely by
simply using the “fighting words” doctrine (and if the words
constitute “fighting words,” then they are not protected by the First
Am. and the two-part Brandenburg test is not even reached).  Just as
in Brandenburg, only speech which is intended to advocate imminent
lawless action, and which is in fact likely to result in such action,
may be punished, so only those words which are likely to result in
violence that cannot be prevented in any other way (i.e., by
controlling the crowd) will punishable under the “fighting words”
doctrine.