Don't argue with cops? The harms of "fighting words"

Abstract

We argue that, even if one accepts the internal logic of “fighting words,” as defined by Chaplinsky, that reasoning fails as applied to the police. Fighting words are those that inspire a violent response in their hearers, and thus are prohibited to keep the peace. The police exist, in part, to maintain the peace. Thus, fighting words addressed to the police shouldn’t pose any risk of breaching the peace because police officers shouldn’t, themselves, breach the peace. Therefore, even accepting that we should criminalize fighting words due to their risk of inciting breaches of the peace, the criminalization of fighting words aimed at the police is unjustified. Arrests under the “fighting words” doctrine result disproportionately from interactions with the police. In a set of 86 “fighting words” cases from 2021-2026 we found that 61.6% involved confrontations with the police. We argue that “fighting words” are harmful through their silencing effects and that these harms are most pronounced in police interactions.