one a “damned fascist.” He was arrested under a state law prohibiting speaking in “any offensive, derisive or annoying word to any person who is lawfully in any street or other public place.” Chaplinsky appealed, but the Supreme Court ruled that his speech contained “fighting words,” which definition is “words, which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In the decades since this 1940 decision, the Court has limited its effects to the most challenging and confrontational of words spoken in a face to face encounter and likely to lead to immediate fighting. In Brandenburg v. Ohio, the defendant, a leader of a Ku Klux Klan group, was convicted in an Ohio state court for having said “Bury the niggers” and “the niggers should return to Africa” at a rally. In the Brandenburg case, the Court distinguished between words and action. The test for the speech “clear and present danger” was not met, because it did not give a prospect of immediate action, and was therefore protected by the First Amendment.In R.A.V v. City of St. Paul , the defendant Robert A. Victoria, along with other teenagers, burned a cross in a black family's backyard. Although this conduct could have been punished under any of a number of laws, R.A.V.’ s action was judged under the “fighting words” category of speech, which consistently with the First Amendment, can be regulated. The ordinance makes it a crime to use “fighting words” when knowing that they will “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Minnesota Supreme Court ruled that the action was not protected by the First Amendment due to the precedent set in the Chaplinsky v. New Hampshire case. It also concluded that the ordinance was narrowly tailored and served a co...
