Analyzing a trio of recent rulings involving usage of the “N” word by white people directed at Black individuals, this Article explores problems with the United States Supreme Court’s fighting words doctrine on its eightieth anniversary. In the process of examining these cases and the troubles they illuminate, including the doctrine’s dubious reliance on racial and gender-based stereotypes, this Article calls for the Supreme Court to do more than merely refine its amorphous contours that lower courts now are fleshing out for themselves. Specifically, this Article contends that the Court must reconsider the foundational goals that animate this aging, often-criticized facet of First Amendment jurisprudence initially articulated in Chaplinsky v. New Hampshire. If those goals no longer pivot on preventing fights that might arise due to utterance of personally abusive epithets, then the doctrine should be reconceptualized. Specifically, it might be refashioned to thwart possible First Amendment-based speech defenses to crimes such as disorderly conduct or torts such as intentional infliction of emotional distress or, perhaps more ambitiously, to help safeguard the realm of civil discourse from hate speech as the nation wrestles anxiously with racial justice. This Article avers that Connecticut Supreme Court Justice Steven Ecker’s concurrence in one of the “N” word cases appraised here, Connecticut v. Liebenguth, lays the groundwork for this latter reconceptualization that simultaneously would promote civil discourse and shield targets of personally vicious epithets from emotional injury. In short, such a doctrinal reformulation would restore focus on Chaplinsky’s concern with “insulting” words that “by their very utterance inflict injury” while deemphasizing its other fret regarding “fighting” words that “tend to incite an immediate breach of the peace.”
Taking the Fight Out of Fighting Words on the Doctrine’s Eightieth Anniversary: What “N” Word Litigation Today Reveals About Assumptions, Flaws and Goals of a First Amendment Principle in Disarray,
87 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol87/iss2/7