Specifically about the "Fighting words" doctrine:
In 1942 a man named Chaplinsky was arrested for disturbing the peace and called one of the arresting officers a "damn fascist and a racketeer" and for that he was charged with, and convicted of, using offensive language in public under a New Hampshire law that stated, it is illegal for anyone to address "any offensive, derisive or annoying word to anyone who is lawfully in any street or public place ... or to call him by an offensive or derisive name." He appealed his conviction and it went to the Supreme court who upheld the conviction.
(Before going any further, let me ask if any reasonable person wouldn't see this law, a law that makes the utterance of any "annoying word to anyone" illegal, as unconstitutional?)
[ From Wikipedia: Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) ]
The Supreme Court delivered a 9 to 0 ruling that claimed there were 'two tiers of speech', and that one 'tier' falls outside of the protection of the First Amendment protection. And that the other 'tier' is the one that is all protected speech.
Justice Murphy wrote:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have 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.
Notice the following:
- There is nothing in the constitution, nor in the Declaration of Independence, nor in the Federalist or Anti-Federalist papers, nor in any other founding documents that this would arise from.
- Instead, this decision's justification was based upon a philosophical position that we can see in these words: "...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." Words that are arranged in sentences that are minimally coherent ARE ideas - whether good or bad, right or wrong, logically sustainable or not. To claim that someone is a facist and racketeer is to make an understandable predication of an identifiable subject - that's enough to be an idea.
- That statement by Justice Murphy tells us that he doesn't mind creating what suits him as a new standard for judging where and how to interpret the constitution - not as a strict limit on the power of the government - not as intended by the founding fathers - but as a tool for achieveing "order and morality" in society. And the Justice has decided that anything he considers lewd, obscene, profane, libelous, or insulting are not in his made-up "protected class".
- Further, he believes that the very utterance of these words "inflict injury or tends to incite an immediate breach of the peace."
[Note: Murphy was one of the 8 different Justices appointed by FDR during a rather progressive period of American politics.]