Recently published, in the Harvard Law Review: Note, Fighting Words at the Founding (138 Harv. L. Rev. 2049 (2025)). From the introduction (footnotes omitted):
… At the Founding, speakers of fighting words were indictable only if they intended to cause violence. Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant. That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.
The difference matters. In 2001, Paul Graham was upset with the way police officers had detained a state fair attendee. After calling one of the officers a “bald-headed dick with ears,” he was arrested. In 1791, Graham could have argued his words merely “proceed[ed] from sudden heat and passion” and that he lacked intent to fight the policeman. That defense no longer exists, and Graham’s conviction stood on appeal. Just after noon in late 2009, a young man flashed a Sureño gang sign at a rival Norteño gang member. California indicted him for challenging the Norteño to a fight. In 1791, the defendant could have argued that he had not flashed the sign with intent to cause actual violence: He knew “there was a girl in the car” with the Norteño and figured “there won’t be a gang fight when [a] girl [is] present.” But today, that argument is worthless. The conviction was affirmed.
The fighting words doctrine lives. In Counterman v. Colorado, seven Justices joined opinions observing that the “Court has not upheld a conviction under the fighting-words doctrine in 80 years.” But the doctrine’s batting average at the Supreme Court is a poor proxy for its practical vitality; most fighting words cases get nowhere near trial, much less the nation’s apex tribunal. The doctrine is still good law. Armed with the power to punish insulting speech, prosecutors have descended on misguided and overzealous expression like bees on lavender.
Because the Supreme Court has yet to resolve the issue, the mens rea that the government must show to prosecute the speaker of a fighting word is an open question. This Note argues that if the common law of 1791 is relevant to the scope of the First Amendment, it offers a single simple rule: No speaker can be punished for a spoken fighting word unless he specifically intended to cause violence. …
Posted at 6:09 AM