In the fall of 2020 an Arizona man named Paul Ng was arrested for his conduct in this viral video (TW: super racist language). https://www.youtube.com/watch?v=x78KZofErBw

I would have thought that his speech, though obviously abhorrent, has constitutional protection. The charge against him was disorderly conduct, premised on the charge that his speech constituted fighting words. Since learning about this I've been trying to read up on the status of the fighting words doctrine. It seems it has been mostly gutted by the supreme court since the foundational ruling in Chaplinsky v. New Hampshire [1942], since which the court has not once upheld an application of the doctrine.

So my question is: is there sound current case law that affirms that this speech is not protected?


1 Answer 1


Hess v. Indiana, 414 U.S. 105 reaffirms Brandenburg v. Ohio, and refines that ruling w.r.t. "imminent". The holding in that case does not directly announce a concrete rule to be applied henceforth, saying

Appellant's language did not fall within any of the "narrowly limited classes of speech" that the States may punish without violating the First and Fourteenth Amendments, and, since the evidence showed that the words he used were not directed to any person or group and there was no evidence that they were intended and likely to produce imminent disorder, application of the statute to appellant violated his rights of free speech.

In Gooding v. Wilson, SCOTUS ruled that

The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within 'narrowly limited classes of speech.'

The Hess court concluded that under no prior standard could "We'll take the fucking street later" be prohibited speech. However, under the fighting words standard of Chaplinsky v. New Hampshire, Ng's speech could easily be deemed to be "fighting words", since the speech was clearly directed at the Youtuber. In Brandenburg, the court's holding was that

Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

This is not the same as saying that a law restricting speech can only be constitutional when the forbidden action is advocating immediate use of force or lawless action, that is, Chaplinsky was not overruled.

The circumstances of the present video contrast starkly with the circumstances of Hess – there isn't even a round-about hint of urging some lawless action, the communication was directed to the Youtuber and there is nothing resembling a crowd to "incite". To the extent that the "fighting words" doctrine is still viable, Ng's conduct might be claimed to fall within the realm of "fighting words", which could at least maybe make the arrest legal.

The most recent ruling on the fighting words question is R.A.V. v. City of St. Paul, 505 U.S. 377, weakly reaffirms Chaplinsky:

A few limited categories of speech, such as obscenity, defamation, and fighting words, may be regulated because of their constitutionally proscribable content

but the ordinance restricting kinds of hurtful speech was found unconsitutional as substantially overbroad, for "display of a symbol which one knows or has reason to know 'arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender'". No ruling has held that a direct person insult is constitutionally-protected speech. On the face of it, his conduct could violate the Arizona law against disorderly conduct, because it is directing "abusive or offensive language or gestures to any person present", but it is also required that it be "in a manner likely to provoke immediate physical retaliation by such person". The Youtuber's calm conduct clearly does not support the "immediate physical retaliation" element.

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    Do courts interpret "likely to provoke immediate physical retaliation by such person" with respect to the demonstrated behaviors of "such person", or do they apply a sort of "reasonable person" standard? It seems plausible that a normal/reasonable person could be incited to retaliation, but by fortunate coincidence or design the actual target could just be unusually chill and restrained and would not be incited. Is such a chill person less protected by the law than a normal person? It seems the law's intent is that the arrest would often occur before the retaliation does, in any case. Jul 3, 2022 at 20:09
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    They use a reasonable person test. Which is one of the reasons why such prosecutions have declined. It takes a lot more to provoke a reasonable person of the 2020s to violence than a reasonable person of the 1920s. Violent responses are far less reasonable now.
    – Dale M
    Jul 3, 2022 at 23:35

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