Yelling profanities at a police officer and other direct, face-to-face personal insults that likely can lead to violence may well constitute fighting words, a narrow category of expression not protected by the First Amendment. But what about a sign with offensive words and/or images displayed 500 feet from a military funeral? Can there be a First Amendment exception for “fighting images”?

Limiting protests near funerals appears to be one of the top legislative agendas of 2006, as more than 25 states have considered or are considering such measures. The measures are a direct response to the protests by the Kansas-based Westboro Baptist Church and its founder, Fred Phelps. Some of the proposals would limit the distance between protesters and funeral processions. Many also prohibit such protests for one hour before and after the ceremonies. Still others add an extra twist to the distance and time limitations by banning “visual images of fighting words.”

For example, the Wisconsin measure, signed into law on Feb. 20, 2006, provides that it is unlawful to “display any image that conveys fighting words or actual or veiled threats against any other person within 500 feet of any entrance to a facility being used for the service.”

Alabama House Bill 661 contains identical language. Georgia Senate bill 606 prohibits the following: “Displaying any visual images that convey fighting words or actual or imminent threats of harm directed to any person or property associated with said funeral or memorial service within 500 feet of the ceremonial site or location being used for the funeral or memorial service at any time one hour prior to, during, or one hour after the posted time for said funeral or memorial service.”

The impulse to legislate against fighting words is understandable because such words represent a long-standing exception to First Amendment protection for speech. In 1942 the U.S. Supreme Court wrote in Chaplinsky v. New Hampshire:

“There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.'”

That case involved Jehovah’s Witness Walter Chaplinsky, who allegedly called a city marshal “a God damned racketeer” and a “damned fascist.” The Court determined that such profane comments constituted fighting words. Notice that the Supreme Court defined fighting words as “utterances” — verbal personal insults directed at a specific person.

This definition raises the question of whether the fighting-words exception extends to beyond direct, face-to-face personal insults to “visual images.”

To First Amendment expert Robert M. O’Neil, founder of the Thomas Jefferson Center, the answer is “almost certainly not — there is no indication in the case law that non-verbal imagery would meet the Chaplinsky test.”

O’Neil described extending fighting words to images is an “exercise in futility.”

“The application of the Chaplinsky standard requires that all the elements in the case be met, which include face-to-face contact that is so provocative as to invite immediate retaliation,” he explained. “I can’t imagine circumstances under which the Chaplinsky standard would be met by pure imagery.”

Courts have been reluctant to extend the fighting-words doctrine to images. In Knight Riders of the Ku Klux Klan v. City of Cincinnati (1995), the 6th U.S. Circuit Court of Appeals ruled that a Klan cross bearing the words “John 3:16” did not constitute fighting words. “Plaintiff’s cross does not fit within the Supreme Court’s narrow definition of fighting words and thus may not be regulated as such by the City,” the appeals court wrote. “Indeed, this court is aware of only one case, Chaplinsky itself, where the Supreme Court has upheld a restriction on speech as fighting words.”

Supporters of the legislative proposals to restrict funeral protests may attempt to draw support from Frye v. Kansas City Missouri Police Department (2004). In that decision, a divided three-judge panel of the 8th U.S. Circuit Court of Appeals ruled that police officers could limit the location of large signs containing photographs of aborted fetuses.

However, the decision did not sanction the banning of such images, only the removal of such signs from the roadways. “Indeed, the police officers did not forbid appellants from expressing their message by the use of the large photographs displaying mutilated fetuses,” the panel majority wrote. “Rather, the police officers placed reasonable restrictions on the location of the signs in order to protect public safety.”

A federal district court decision decided a few months after Frye indicates that its reach may be limited. In World Wide Street Preachers’ Fellowship v. City of Owensboro (2004), a federal district court in Kentucky determined that street preachers’ anti-abortion images were not fighting words. The city had justified law enforcement’s confiscation of the signs of aborted fetuses based on the fighting-words doctrine.

The federal district court disagreed, finding that fighting words are “epithets (1) directed at the person of the hearer; (2) inherently likely to cause a violent reaction; and (3) playing no role in the expression of ideas.”

The court also noted that the signs, even if they were highly offensive, addressed a very important and controversial social issue. “In light of Supreme Court precedent, the Court cannot find that the Plaintiffs’ sign, no matter how gruesome or how objectionable it may be, constitutes fighting words.”

The federal district court distinguished Frye as a reasonable time, place and manner restriction on speech rather than a ban on fighting words, noting that “the Kansas City police did not ban the signs, but merely asked that they be moved back further off the road.”

These cases show that the concept of “fighting images” presents troubling constitutional concerns. Calling someone a “damned racketeer” may still be fighting words, but insulting him in an image 500 feet away may very well not be.

Posted April 2006