Contrary to what some Americans might think, not all speech is protected under the First Amendment

fighting words doctrineMost Americans are familiar with the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

However, some mistakenly believe that the protection of speech is absolute; that anything a person says is protected. That is just simply not true. We all need to understand what the First Amendment is and what it does, and doesn’t do. And we need to understand how important it is and how extremely lucky we are that we live in the only country in the world that has guaranteed its citizens freedom of speech.

There have been many Supreme Court challenges to the First Amendment over the years. What I want to focus on right now are the guidelines set down by the Court regarding hate speech and fighting words. Recently in Ohio, a 19-year-old was suspended from high school for wearing a Confederate flag belt buckle. School administrators said that the item was disruptive. His mother insists that he isn’t racist and isn’t making any political statement by wearing the buckle, but that it was a gift from a friend who had died. That may be all well and good but what I want to know is what is a 19-year-old still doing in high school?

The student admits that by wearing the buckle, he is not making any kind of political statement. He is merely remembering the friend who gave it to him. That, in a nutshell, is proof enough of why the school was correct in telling him he couldn’t wear it. What if the image on the belt buckle was a swastika instead of a Confederate flag? What if it said, “Fuck You!” on it? Would you allow him to wear the buckle in those cases?

The Fighting Words Doctrine states that written or spoken words that are intended to incite hatred or violence are not protected by the First Amendment. This became settled law in the case of Chaplinsky v. New Hampshire. This means that you cannot shout “fire!” in a crowded theater and create panic if the theater is not on fire. It means you cannot call an African American a nigger and then charge him with assault when he kicks your ass. The key is in the intention. If the speech is designed specifically to incite violence, then it is not protected.

Unless you live under a rock that is not in a wifi hot spot, you are probably aware of the Westboro Baptist Church. They use the most vile and foul language to protest military and other notable funerals. Last year, the Supreme Court held that their speech is protected and does not fall under the fighting words doctrine. Personally, I disagreed with that ruling. If any speech were designed to incite hatred, it would be the filth that spews from the Westboro Baptist Church.

fighting words doctrine
Westboro Baptist Church member

The First Amendment also does protect some speech that we would find offensive and disagreeable. You can’t spray paint swastikas on a synagogue and call it protected speech, but the Ku Klux Klan can file for a permit and hold a rally and march down public streets in their white hoods. In the case of Brandenburg v. Ohio, the Supreme Court ruled, in essence, that merely marching down the street and giving speeches about their political opinions didn’t meet the fighting words doctrine.

One of the most famous cases regarding the First Amendment and student dress codes is Tinker v. Des Moines. The Court ruled in that case that students could wear black armbands as a protest against the Vietnam War. Schools were only allowed to forbid conduct and clothing that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

It really is a fine line. Just because something is offensive doesn’t mean it isn’t protected speech, so where do you draw the line? What is offensive to me may not be offensive to someone else. However, I think there is a group of words and phrases and symbols that are universally linked to hatred and bigotry and should never be used again.

I believe that the Confederate flag falls into that category. I believe that the school did the right thing in prohibiting the student from wearing the belt buckle. He admitted himself that he isn’t trying to make a statement. He can still remember his friend without wearing the offensive belt buckle. Free speech is not absolute. We have to be responsible with our actions and our words.


  1. Your article provided me with a very timely read. It was not only honest and truthful, it was also humorous as well. Well done. I work for a local community television station and free speech issues are often an issue for us. Not so much for the station, as we are obligated to play the public’s programs. But we do have to spend time educating the community, and some our elected officials, about protected speech.

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