In class today, the question of the First Amendment came up a lot, including the SCOTUS case against the Westboro Baptist Church. Indeed, the family of a fallen soldier sued the WBC for protesting 1000 feet away from a the soldier’s funeral in 2006. This case made it all the way to the SCOTUS in 2010.
The Supreme Court ultimately ruled in favor of the Westboro Baptist Church, stating protection under the First Amendment, presumably because protesters were not inciting violence and were within their rights no matter how outrageous their message. The conclusion of Chief Justice Roberts’ majority opinion:
Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.
“Fighting words” doctrine developed in 1942 in Chaplinsky v. New Hampshire:
The Court identified certain categorical exceptions to First Amendment protections, including obscenities, certain profane and slanderous speech, and “fighting words.” He found that Chaplinsky’s insults were “fighting words” since they caused a direct harm to their target and could be construed to advocate an immediate breach of the peace. Thus, they lacked the social value of disseminating ideas to the public that lay behind the rights granted by the First Amendment.
The Freedom Forum Institute has a great primer on the First Amendment that I highly recommend.