“God hates you wicked baby killing whores,”1 “cocksucker,”2 “fucking cunt,”3 and “shut your fucking mouth, you bitch”4 are statements that start fights. In 1791, it was similarly inflammatory to call someone a “drunkard,”5 “liar,”6 “puppy,”7 “blackguard,”8 “companion for negroes,”9 or (more ambitiously) a “cuckoldly knave.”10 Modern law labels speech that, in context, tends to provoke immediate violence “fighting words.”11 This kind of expression was proscribable in 1791 and is subject to content-based regulation today.
At the Founding, speakers of fighting words were indictable only if they intended to cause violence.12 Yet today, Americans who speak fighting words without any intention of causing a fight routinely face criminal sanctions. The Supreme Court has yet to rule definitively on whether the First Amendment requires that the government prove mens rea to punish the speaker of a fighting word. But in the lower courts, nearly every defendant prosecuted for speaking a fighting word faces strict liability: Her interior mental state is irrelevant.13 That approach breaks with the uniform practice of the common law at the time the nation ratified the First Amendment.
The difference matters. In 2001, Paul Graham was upset with the way police officers had detained a state fair attendee.14 After calling one of the officers a “bald-headed dick with ears,” he was arrested.15 In 1791, Graham could have argued his words merely “proceed[ed] from sudden heat and passion”16 and that he lacked intent to fight the policeman.17 That defense no longer exists, and Graham’s conviction stood on appeal.18 Just after noon in late 2009, a young man flashed a Sureño gang sign at a rival Norteño gang member.19 California indicted him for challenging the Norteño to a fight.20 In 1791, the defendant could have argued that he had not flashed the sign with intent to cause actual violence: He knew “there was a girl in the car”21 with the Norteño and figured “there won’t be a gang fight when [a] girl [is] present.”22 But today, that argument is worthless. The conviction was affirmed.23
The fighting words doctrine lives. In Counterman v. Colorado,24 seven Justices joined opinions observing that the “Court has not upheld a conviction under the fighting-words doctrine in 80 years.”25 But the doctrine’s batting average at the Supreme Court is a poor proxy for its practical vitality; most fighting words cases get nowhere near trial, much less the nation’s apex tribunal. The doctrine is still good law.26 Armed with the power to punish insulting speech, prosecutors have descended on misguided and overzealous expression like bees on lavender.27
Because the Supreme Court has yet to resolve the issue, the mens rea that the government must show to prosecute the speaker of a fighting word is an open question.28 This Note argues that if the common law of 1791 is relevant to the scope of the First Amendment, it offers a single simple rule: No speaker can be punished for a spoken fighting word unless he specifically intended to cause violence. Part I describes the proscribable categories, the constitutionally mandatory mens reas attached to them, and the uncertainty surrounding the mens rea for fighting words. Part II discusses the wrongful mental states attached to the eighteenth and early nineteenth-century regulations that would today fall within the fighting words doctrine. It finds that all plausible analogues required intent to cause violence. A final section concludes.
I. Fighting Words and Mens Rea Today
A. The Origin of the Proscribable Categories and the Core Definition of Fighting Words
The Supreme Court’s decision in Chaplinsky v. New Hampshire29 provides the architecture of the modern proscribable categories30 and an enduring definition of fighting words. Walter Chaplinsky called a city marshal “a God damned racketeer and a damned Fascist.”31 Arrest followed.32 On appeal, the Court famously declared that certain categories of speech are unprotected by the First Amendment and that “fighting words” are such a category:
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 injury33or tend to incite an immediate breach of the peace.34
The Court then approved the statute of conviction as construed by the New Hampshire Supreme Court, arguing it “does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitute a breach of the peace by the speaker.”35
Chaplinsky has become the skeleton of the modern First Amendment. In 1942, content neutrality simply was not part of speech doctrine.36 But the seeds had been sown by the dissents and concurrences filed in Abrams v. United States,37 Gitlow v. New York,38 and Whitney v. California.39 Within three decades of Chaplinsky, the Court would equate content neutrality with “the Freedom of Speech”40 itself: “The First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.”41 Today, because most content-based regulation of non-proscribable speech receives strict scrutiny, the scope of the proscribable categories is often outcome determinative.42
B. Mens Reas and the Proscribable Categories
Mens rea requirements provide further protection even within the unprotected categories. The First Amendment often shields speakers who lack a wrongful mental state as to the characteristic that renders their speech proscribable.43 Thus, a public figure suing for libel cannot recover damages unless the defendant was at least reckless as to the falsity of his statement.44 The reason for these rules is that ambiguity as to the scope of the proscribable categories chills protected speech. Uncertainty proxies powerfully for state censorship; if a speaker cannot tell whether her words are punishable, she has strong incentives to cover her own mouth.45 Zones of proscribable and non-proscribable speech are “often separated . . . only by a dim and uncertain line,”46 so scienter requirements create a buffer at the frontiers of protected expression.47
Mens rea requirements correspond to the social value of the proscribable categories.48 Although requiring a wrongful mental state preserves the vibrancy of protected speech, it also leaves unprotected expression unregulated.49 The net benefit of mens rea is thus increasing with the speech’s proximity to core political expression. The law is organized accordingly. Seditious advocacy borders on political activism and thus cannot be punished without specific intent to cause lawless conduct.50 Obscenity is more distant from core political speech, so knowledge (or perhaps recklessness) suffices.51 Child sexual abuse material is still more remote, and the First Amendment requires only recklessness.52 True threats get the same standard for the same reason.53
C. The Requisite Mens Rea for Fighting Words Convictions Is Unclear Under Existing Precedent
Some modern cases imply the government must prove a wrongful mental state to punish the speaker of a fighting word. But other decisions suggest the opposite, and the relevant authority tends to be weak, equivocal, or glancing. Complications abound.
1. Cantwell, Chaplinsky, and Counterman Suggest No Mens Rea Requirement. — Cantwell v. Connecticut54 suggests the government need not prove a wrongful mental state to regulate the speaker of a fighting word.55 In discussing common law breach of the peace, the Cantwell Court noted “[o]ne may, however, be guilty of the offense if he commit acts or make statements likely to provoke violence and disturbance of good order, even though no such eventuality be intended.”56
These words are unlikely to settle the issue. First, and most obviously, they are dicta. The holding of Cantwell is simply that Cantwell’s words “raised no such clear and present menace to public peace and order as to render him liable to conviction.”57 Second, Cantwell was describing the common law offense, not the Constitution.58 The Court indicated that the common law crime must lie outside the First Amendment, but it then described the offense as “a common law concept of the most general and undefined nature.”59 Third, at least as of 1791, the Cantwell Court was simply wrong about the common law crime it was describing.60 And fourth, the defendant did not raise his mental state on appeal to the Supreme Court.61
Chaplinsky also suggests that fighting words can be punished regardless of mens rea. The Court stated that “the use in a public place of words likely to cause a breach of the peace”62 is “conduct lying within the domain of state power.”63 But, quite like in Cantwell, the issues on appeal in Chaplinsky were vagueness, truth defenses, and the constitutional status of abusive language.64 And even on these subjects, subsequent cases have largely erased Chaplinsky’s reasoning.65
Another reason to doubt Cantwell and Chaplinsky is that, read literally, they suggest that the government can punish the speaker of a fighting word without even proving negligence. If a person with no command of English repeats words that objectively “tend to incite an immediate breach of the peace,”66 convicting her seems unjust. Commentators have suggested the First Amendment would bar punishment in this context.67 But there is exactly nothing in a literal reading of Cantwell and Chaplinsky to support that proposition.68 Other scholars have suggested Cantwell’s requirement that the speech be “directed to the hearer” constitutes an “implicit” “intent requirement.”69 That is unpersuasive. Whether a speaker directed his words to a specific person is a separate question from whether he thought they would cause violence. Thus, if Cantwell and Chaplinsky control, the First Amendment tolerates strict liability punishment of fighting words.
The 2023 decision in Counterman v. Colorado, viewed through a squinting eye, implies that the First Amendment requires no mens rea for fighting words. In Counterman, the Court held that the speaker of a true threat can be punished only if he was at least reckless as to the threatening nature of his speech.70 To support the broader claim that negligence is an adequate mens rea for true threats, Justice Barrett’s dissenting opinion claimed that both obscenity71 and fighting words72 lack a mens rea requirement. The Court replied to Justice Barrett’s claim about obscenity by simply arguing that obscenity convictions do require scienter.73 But, perhaps tellingly, it met her fighting words claim by describing the doctrine as marginal and thus “a poor candidate for spinning off other First Amendment rules.”74 Justice Sotomayor’s concurrence took a somewhat similar approach.75 Perhaps the Court’s refusal to state a mens rea for fighting words whispers that intent is irrelevant. But Counterman provides (at best) a negative inference drawn from dicta.
2. Garrison, Beauharnais, and Pacifica Suggest a Knowledge or Purpose Mens Rea. — A few cases weakly suggest that the government must prove a wrongful interior mental state as to ultimate violence before it can punish the speaker of a fighting word. FCC v. Pacifica76 provides the friendliest dicta. Citing Chaplinsky’s discussion of fighting words, the Court argued that “[t]he government may forbid speech calculated to provoke a fight.”77 That definition of fighting words was then cited by Texas v. Johnson78 during a passage addressed to fighting words.79 Beauharnais v. Illinois80 smiled on regulation of speakers who “incite violence and breaches of the peace in order to deprive others of their equal right[s].”81 And one holding of Garrison v. Louisiana82 is that Louisiana’s criminal libel statute could not be upheld as a regulation of fighting words because of “the absence of any limitation in the statute itself to speech calculated to cause breaches of the peace.”83
But the key sentence from Garrison has never been followed, and Pacifica and Beauharnais make sandy foundations. First, the language in the two cases is dicta by any definition. Pacifica is about indecency;84 Beauharnais is addressed to libel.85 Second, in Pacifica, Justice Stevens was writing for a plurality of three.86 And third, neither case is settled precedent. New York Times Co. v. Sullivan87 strangled Beauharnais’s “group libel” theory in its infancy.88 And Reno v. ACLU89 and Sable Communications of California, Inc. v. FCC90 treated Pacifica the way bowling balls treat the pins. If Pacifica applies only to regulations that are both civil91 and addressed to the radio,92 it has near-zero general force.
At bottom, Cantwell, Chaplinsky, Counterman, Garrison, Johnson, Beauharnais, and Pacifica add up to just about nothing. Though state and inferior federal courts unanimously apply a strict liability standard,93 the actual constitutional rule is unclear. Where the law is unsettled, “the government must generally point to historical evidence about the reach of the First Amendment’s protections.”94 The next Part puts the government to its proof and finds it wanting.
II. Mens Rea and Fighting Words at the Founding
All plausible Founding-era analogues for modern fighting words offenses required specific intent. In “reasoning by analogy,”95 the question is “how and why the regulations burden” the relevant right.96 Thus, the inquiry is limited to Founding-era law that regulated speech because of its “tend[ency] to incite an immediate breach of the peace.”97 History reveals five candidate analogues: breach of the peace, duel challenge, criminal libel, slander, and swearing. This Part considers each potential analogue in turn.
A. The Common Law Offense of Breach of the Peace
Speech that breaks the peace was illegal at common law and is illegal today. But the common law offense was narrower in scope and theory. Today, the law views improper speech as a self-contained breach of the peace. Chaplinsky, for instance, describes the statute as punishing words “plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker.”98
The common law viewed the problem differently. The actual breaching of the peace through violence was a substantive offense.99 But words that tended to breach the peace were criminal only because they were a method of causing or attempting to cause violence.100 Because the speaker was ultimately being punished for causing violence, the law required mens rea as to an actual or possible violent result.101
Here the old authorities are unanimous: Speech tending to breach the peace was illegal as an attempt to cause violence, not simply because the words were themselves inflammatory. In A Treatise of the Pleas of the Crown, William Hawkins notes that although “bare quarrelsome Words” “are not punishable at all,”102 “it is a very high Offence . . . even barely to endeavor to provoke another to send a Challenge, or to fight.”103 Blackstone, relying on Hawkins, takes the same approach in the Commentaries on the Laws of England.104 Thomas Starkie’s Treatise on the Law of Slander observes that “it is immaterial whether [the speaker] directly solicited another to break the law, or effected the same end by means indirect, but equally certain.”105 Lord Coke wrote in the Institutes that “if any subject by word, writing, or message challenge[s] another to fight with him, this is also an offence before any combat be performed . . . [f]or when anything is prohibited, everything by which it is achieved is prohibited also.”106
Treating fighting words prosecutions as prosecutions for the actual or attempted causing of violence had obvious implications for mens rea. Joseph Chitty observes that “[w]hether the words used amount to a serious challenge to fight, or were a mere effusion of passion, is a question for the jury.”107 Starkie requires “attempt to produce disorder.”108 And the English cases required the same.
1. The Common Law of England. — English courts consistently held that words tending to break the peace were not indictable unless spoken with intent to break the peace. The earliest case citing the rule dates to the late sixteenth century, and the doctrine continued unbroken until well after 1791.
The 1588 decision in King’s Case109 appears to be the earliest relevant decision. It recognizes a mens rea requirement for words tending to break the peace.110 The defendant in the action had already been bound to his good behavior.111 But he ran his mouth anyway, stating that one “Kirton” was “a pelter, and a teller of lies, and a drunkard; and that he would make him a poor Kirton; and that he had entered and broke the close of Kirton.”112 The question was whether the words broke the peace and thus breached the recognizance.113
The court held that the speaker lacked the interior mental state necessary to breach the recognizance.114 In Chief Justice Wray’s view, “nothing shall be said a breach of the recognisance, but that which sounds to the hurt of another, and by intendment may be a breach of the peace.”115 Lord Coke’s Institutes reads King as standing for a distinction between words like “liar” or “drunken knave” and “challenge[s] to fight” or “threat[s] . . . to beat or wound.”116
In Domina Regina v. Nuns,117 the King’s Bench relied on the mens rea requirement in rejecting an indictment for speech tending to break the peace. The defendant had told the justices of the peace at a petty session: “This is not justice of peace’s business, you shall not try this, have a care what you do, I have blood in me if I had you in another place.”118 The King’s Bench admitted the words were “dark”119 and “look like a challenge.”120 But to be indictable, they would have to “tend to a breach of the peace.”121 And “for words that tend to a breach of the peace, and not such as are only likely to provoke the other to break the peace, but must shew an intention in the speaker, and that they were spoken on purpose to procure a fighting and breach of the peace.”122
Ninety-two years later, the King’s Bench was still applying the same rule. The defendant in Rex v. Philipps123 wrote to one R.G. Thomas, informing him that “in the whole of the Carmarthenshire election business . . . you have behaved like a blackguard.”124 Ominously, the defendant added that he planned to “punctually attend to any appointment you may think proper.”125 Construing the latter phrase as an oblique attempt to instigate a duel, the Crown indicted the defendant at common law for attempted breach of the peace.126 A jury convicted.127
Finding sufficient intent, the court affirmed.128 Lord Mansfield reasoned that the character of an alleged act could shift the burden of proof as to intent but could not eliminate the intent requirement.129 Thus, in some cases “the allegation of intent is . . . [an] inference which the law draws from the act itself,” while in others it is a “matter of fact . . . [requiring] specific allegation and proof.”130 But, in either case, the defendant retained the power to provide “evidence on his part, and thereby to have repelled the bad intention” necessary to conviction.131 Philipps would come to symbolize rigid intent requirements in criminal cases.132
Related English cases applied the settled rule to fresh subspecies of invective: “You are a rogue and a rascal”133 and “[you are] a blockhead, or a bufflehead”134 were both unindictable statements without criminal intent. For at least 203 years prior to the Founding and at least forty-five years after it,135 the English common law demanded a wrongful mental state as to an ultimate act of violence. Without intent to procure a fighting, unkind words were just that: unkind words.
2. Early American Decisions. — The young Republic followed the English rule.136 In State v. Farrier,137 a North Carolinian was indicted for challenging a man to an out-of-state duel.138 His defense was plausible, if formalistic: Because his letter proposed a duel in a different state, it “was not a challenge to violate the peace of this State.”139 And “without such intent, the Defendant could not be guilty.”140
The North Carolina Supreme Court agreed specific intent was an element of the offense, but concluded intent was present. The court said “the offense consists in sending a challenge, either by word, or by letter, to fight a duel.”141 It reasoned that intentional challenges to extraterritorial duels were also proscribed by the statute.142 It noted that “the indictment charges the Defendant with an intention to provoke the prosecutor to fight a duel with pistols.”143 And it found evidence of that intent in the letter,144 which demanded “revenge[,] . . . that opportunity of redress which one gentleman is bound to render to another.”145
Nine years earlier, and one state over, a South Carolina defendant had raised an identical defense.146 Arguing that “it appears perfectly evident, that it was the defendant’s intention to challenge the prosecutor to fight,” the Constitutional Court of South Carolina held that “there is still enough to support the conviction.”147
American indictments for speech tending to breach the peace asserted that the speaker had a wrongful mental state as to an actual or potential violent act. After David Brown allegedly sent a duel threat by letter to a Dr. John Rust, he was indicted at common law for duel challenge.148 The court described the English precedent, and Chitty in particular,149 as “evidences of the Law from which we ought not lightly to depart.”150 The indictment alleged Rust wrote “wickedly and maliciously intending, &c. not only to disquiet and terrify the said Rust, but also the said Rust maliciously, &c. to kill and murder, &c. afterwards.”151 The last thirteen words would be irrelevant if mens rea as to an ultimate act of violence were not an element of the offense.
Founding-era regulation of speech tending to breach the peace is the most obvious analogue to modern fighting words. In 1791, specific intent to cause violence was an element of the offense.
B. Anti-Dueling Statutes
Statutes banning challenges to duel are analogous to modern regulation of fighting words. Indeed, modern prohibitions on fighting words are just successor statutes built on the old anti-duel laws.152 During the Founding period, dueling was becoming an increasingly popular method of dispute resolution.153 Because duel challenges “tend[ed] to incite an immediate breach of the peace,”154 legislatures drafted new statutes expanding liability beyond the common law’s breach-of-peace baseline. Despite the seriousness of the problem and the odiousness of the speech, the states consistently refused to punish duel challenges issued without specific intent to cause a duel.
1. Organized Single Combat at the Founding. — English colonists arriving on North American soil brought with them both the common law’s prohibitions on dueling155 and the practice itself.156 Duels were infrequent between 1620 and 1760,157 but the custom would soon gain an awful momentum. There were twice as many recorded duels between 1775 and 1800 than in the 150 years prior.158 By the beginning of the nineteenth century, dueling had become a “positive scourge.”159
Three points about Founding-era dueling and duel regulation are relevant for First Amendment purposes. First, duel threats tended to be highly ambiguous, especially to an untrained ear. Duels were demanded with equivocal phrases like “I must teach you to proceed with decency,”160 “I now take the earliest opportunity to require of you a retraction,”161 and “if therefore your determinations are final . . . Mr. Van Ness is authorized to communicate my further expectations.”162 Second, legislatures viewed dueling as a reprehensible and unchristian practice163 and attempted repeatedly to discourage it by statute.164 Finally, third, American duels were not for show. The habit was not to fire at the open sky, nod, and trot home; almost forty-five percent of recorded duels killed a participant.165 Alexis de Tocqueville observed that “in Europe” one “fights a duel . . . to be able to say that one has done so.”166 But “[i]n America one only fights to kill.”167
2. The Anti-Dueling Statutes. — Over time, dueling statutes came to embrace heightened penalties and broader liability for surgeons, seconds, messengers, and other adjuncts.168 But mens rea requirements remained unyielding. In 1719, the Massachusetts General Court passed what appears to be the earliest anti-dueling statute in the colonies.169 It provided for two categories of punishable persons, namely those who “fight a duel[l], combat, or engage in a rencounter” with various weapons as well as those who “challenge another to fight a duel[l].”170
Less than a decade later, and evidently unsatisfied with results, the general court replaced the 1719 statute with a 1728 statute “for Making Other Provision Instead.”171 The 1728 statute offered a stiffer and more creative set of penalties and made those penalties mandatory.172 It also broadened the range of punishable actors, placing liability on anyone who “shall any ways abett, prompt, encourage or seduce any person to fight a duel or to challenge another to fight.”173 But the 1719 statute’s mens rea requirements remained. Even in the 1728 statute, all liability was preconditioned on the action having been taken “to fight a duel” or to “challenge another to fight.”174
Pennsylvania’s 1794 “Act for the Prevention of Vice and Immorality”175 reflects the anti-dueling statutes’ structure and their emphasis on mens rea. The Act criminalizes “challeng[ing] . . . the person of another to fight.”176 It also criminalizes “willingly and knowingly carry[ing] and deliver[ing] any written challenge, or . . . verbally deliver[ing] any message, purporting to be a challenge.”177 The statute thus distinguishes a “challenge” from a “message purporting to be a challenge.”178 It follows that a statement can appear objectively to be a challenge yet not in fact be one.179 The intent of the speaker is the only plausible factor that can distinguish two facially identical statements, rendering one a challenge and the other merely words “purporting to be a challenge.”
The distinction between actual and purported challenges tracks ordinary expectations about the interior mental state necessary to support criminal responsibility. The challenger lacks a blameworthy mental state if he did not intend to challenge. The statute therefore does not punish him unless his words were spoken with intent and thus were in fact a “challenge.”180 Likewise, because a mere messenger “deliver[ing]” a challenge would lack mens rea if he had no idea that he was carrying such a message, the statute requires him to have acted “willingly or knowingly.”181 But the messenger who orally delivers a statement “purporting to be a challenge” cannot claim ignorance of its contents.182 Even if the statement is not in fact a challenge, the messenger has delivered words that he knows full well appear to be a challenge. That is wrongful conduct, and the statute punishes it. Contemporaneous statutes draw the same distinction as the 1794 Pennsylvania Act.183
Other statutes were more direct. An 1802 New York statute simply punishes “any citizen of this state who shall by word, writing or otherwise, request or invite any person to meet him, with intent to fight a duel . . . and every person knowingly being the bearer of any challenge or message sent with the intent aforesaid.”184 The 1790 Pennsylvania Constitution disqualifies “[a]ny person who shall . . . fight a duel, or send a challenge for that purpose, or be aider or abettor185 in fighting a duel” from holding public office.186
An 1802 North Carolina statute straightforwardly titled “An Act to Prevent the Vile Practice of Duelling within this State” was drafted similarly.187 The Act renders actual and would-be duelists ineligible for “any office of trust, honour or profit in this state” and eligible for fines up to 100 pounds upon conviction.188 And it defines the regulated class as any “person sending, accepting or being the bearer of a challenge for the purpose of fighting a duel.”189 All agreed that the Act changed punishment.190 But its description of proscribable dueling speech was viewed as a restatement of the traditional common law doctrine.191
3. The Cases Interpreting Anti-Dueling Statutes. — The cases interpret the statutes to require mens rea, just as the common law had. The defendant in Commonwealth v. Hart192 wrote an ambiguous letter to one “J. Twiman” after the former’s deer were spotted on the latter’s land.193 Hart’s missive opened with a menacing brand of comedy: Because Twiman was a “puppy, blackguard, and companion for negroes,”194 the deer would not have ventured onto his land except by accident “if they had that respect for themselves, which I have always endeavored to teach them to have.”195 The letter continues: “I propose that you meet me with your rifle, this evening, precisely at 5 o’clock, . . . on the Georgetown road, and I will try to introduce you to better company than I suspect you have lately been in. I will at least promise to wipe your hands, if not your face.”196
The Kentucky Supreme Court acknowledged that “[t]he legislature intended, by the act, to suppress the practice of duelling” and that it was the “duty [of the court] to give effect to the intentions of the legislature.”197 But it saw nothing in the statute altering traditional mens rea principles.198 It wrote that if the jury “should be of opinion” that Hart had spoken “without any intention of challenging to a fight with deadly weapons, although such conduct merits no commendation, he may be acquitted.”199 But if Hart had “intended to bring about a fight with rifles . . . then he has been guilty in the eye of the law.”200
At and around the Founding, across decades and jurisdictions, similar cases were resolved in precisely the same way. In State v. Gibbons201 the Supreme Court of Judicature of New Jersey interpreted statutory text reading “[t]hat if any person shall, by word, message, letter, or any other way, challenge another to fight a duel” to require specific intent.202 As Chief Justice Kirkpatrick put it: “Whether challenge or not is always a question for the jury, upon the whole evidence . . . for it is principally from these that the true intent and understanding of the parties can be collected.”203 State v. Strickland,204 an interpretation of South Carolina’s anti-dueling statute, held that in assessing challenges “[t]he sole question is, was it intended to shed blood in a duel?”205
C. Criminal Libel
Criminal libel is not analogous to modern fighting words offenses. Here, the problem is that the law of criminal libel regulated speech in a different way, not that it did so for a different reason. Specifically, while criminal libel laws regulated speech for its tendency to cause breaches of the peace, they only regulated verbal expression. Moreover, even if criminal libel were a proper analogue, it still required mens rea (albeit a more limited form).
1. Why Criminal Libel Regulated Speech. — The courts of England and the early Republic punished criminal libel for the precise reason that fighting words are punishable today.206 While civil libel protected a man’s private interest in his reputation, criminal libel served the state’s interest in preventing violence. In one court’s words: “The cause why libellous publications are offences against the state, is their direct tendency to a breach of the public peace, by provoking the parties injured, and their friends and families, to acts of revenge . . . .”207
2. How Criminal Libel Regulated Speech. — Modern fighting words statutes and Founding-era criminal libel laws regulate speech in entirely different ways. The latter therefore cannot serve as a historical analogue for the former. Today, fighting words must tend to cause genuinely immediate breaches of the peace.208 As a result, fighting words are almost always spoken, not written, expression.209 But criminal libel was categorically limited to written or otherwise fixed statements.210 The Founding generations viewed the spoken-written distinction as “found-ed in the nature of man,” and “therefore a constituent part of the laws of every society.”211 Their view cannot be shrugged off as superstition.
First, the written-spoken distinction proxied for premeditation and deliberation on the part of the speaker. Nine months before the nation ratified the First Amendment, even prosecutors were admitting that “[m]any words may be spoken, such as rogue, villain, or rascal, for which no action at law can be brought. They are considered as words of heat and passion, and are not subject to prosecution.”212 As Justice Sullivan put it, a “distinction is also made between” words that tend to harm a man in his “prospects, business, or profession” and those that merely “proceed from sudden heat and passion; such as calling one a rascal, liar, villain, &c.”213 But the distinction “is lost,” Sullivan continued, when “[the words] are committed to paper; because that every act of writing is deliberate.”214
And second, spoken “[w]ords vanish in air . . . but words written, or signs made215 to impress the senses, may do a lasting injury.”216 The indelibility of written abuse rendered it more likely to “stimulate [people] to revenge; and thereby endanger the peace of the society.”217
If anything, the comparative ease with which a libelous message can be written today is a justification for treating many written statements (like texts or direct messages) the way the colonists treated spoken statements. The same change in technology is equally a reason modern spoken statements cannot be treated as the colonists treated written messages. Moreover, as the next two subparts discuss, criminal libel still required mens rea.
3. The Common Law of England. — In criminal libel prosecutions, the English common law required the state prove the defendant wrote with intent to harm the libeled person. But, once that was established, intent to disturb the peace was presumed. In The King v. Topham,218 the King’s Bench arrested a libel judgment because the defendant lacked intent to harm the person about whom he had written.219 The indictment alleged the defendant had published materials claiming George Nassau Clavering, Earl Cowper, “was a person of a vicious and depraved mind and disposition, . . . had led a wicked and profligate course of life,” and engaged in “criminal and unmanly vices and debaucheries.”220 The Earl was unlikely to protest; he had died in 1789.221 But the court argued the words could still implicate the policy behind the prohibition on criminal libel: Written defamation “tends to stir up others of the same family . . . to break the peace” both “to vindicate the memory of the deceased, and to wipe off that stain which the reflections on the ancestor may cast upon them.”222
Though intent to breach the peace would be imputed from intent to harm Earl Cowper’s reputation, the latter intent was still a prerequisite to criminal liability. “[I]f [the speech] be done with a malevolent purpose, to vilify the memory of the deceased . . . then it is done with a design to break the peace, and then it becomes illegal.”223 The trouble for the government was that the indictment failed to allege that the defendant had written with “malevolent purpose.”224 Indeed, the same words could just as easily have been “published in the spirit of a biographer.”225 The judgment therefore could not stand.226 Subsequent English authority follows Topham.227
But if an indictment satisfactorily alleged intent to injure the libeled person, the law would presume intent to breach the peace. The authority most often cited for this proposition is Lord Mansfield’s opinion in Rex v. Woodfall.228 The defendant had allegedly printed and published a “seditious libel,” signing it “Junius.”229 Though the alleged misconduct was typical of criminal libel prosecutions, the behavior of the jury was anything but. After “a great while, many hours,” “the foreman gave [the] verdict in these words — ‘Guilty of the printing and publishing only.’”230 To the crown, this was a conviction; to the defense, it was an acquittal.231 The King’s Bench agreed with the government.232 Lord Mansfield reasoned that malice would be presumed in criminal libel cases unless rebutted by the defendant.233 Thus, the jury’s failure to find “express malicious intent” was irrelevant.234
4. The Courts of the Early Republic. — American courts gave English criminal libel doctrine at most a partial embrace. First, American criminal libel indictments always alleged malice; the courts of the young Republic were, at minimum, no less protective than the Woodfall-era King’s Bench. Indeed, the tendency was to lay it on thick. A common construction was “wickedly, maliciously and unlawfully minding, contriving and intending . . . to injure, oppress and aggrieve and vilify the good name [of the libeled person].”235 The conventional definition of libel was “a censorious or ridiculing writing, picture, or sign, made with a mischievous and malicious intent.”236
Second, American courts offered a bouquet of excuses, any one of which could defeat the presumption of malice. In general, statements that were both true and offered “in a decent manner” and for valid purposes could not be indicted as libel.237 Another common rule was a sort of proto-Noerr–Pennington doctrine238: Even scandalous material was often unindictable if included in a petition to the legislature.239 Other specifically protected statements included honest criticism of executive officers,240 candidates for public office,241 and ministers of the gospel.242 The general rule was that when the defendant alleged an excuse, “truth is a justification, and may be given in evidence as such under the general issue.”243 Prosecutors responded by preemptively alleging falsity in indictments and informations.244 And it was “a principle universally admitted and well understood, that a publication simply denying charges imputed to the author” could not be libel.245
Overall, criminal libel cannot support current law for two reasons. First, it was limited to written words and thus is not analogous to modern regulation of fighting words. And second, again unlike modern regulations, it required mens rea.
D. Slander
Civil slander cannot serve as an analogue for fighting words because it did not regulate expression for its tendency to cause violence. Instead, it was a civil tort by which victims could “mend[]” “the wounds of mangled reputation.”246
Criminal slander cannot serve as an analogue because it did not exist at common law.247 The bar on criminal slander prosecutions was absolute, unquestioned, and obtained on both sides248 of the Atlantic. Indeed, the very idea of criminal slander was alien to the founding generation. As the General Court of Virginia put it: “A case of slander may display . . . baseness and malignity of purpose . . . . And yet none would think of prosecuting it criminally.”249
E. Swearing
Swearing was illegal at common law not because it “tend[ed] to incite an immediate breach of the peace” but rather because it was considered a “public affront to religion and morality.”250 It is therefore a poor analogue for modern fighting words prosecutions.
Blackstone categorized swearing as one of the “Offences against God and Religion,”251 situating it between passages on “blasphemy against the Almighty”252 and “the offence of witchcraft.”253 Swearing was a sort of double delinquency, at once injurious to both societal morals and “our national religion.”254 For instance, jurisdiction over swearing was vested concurrently in the ecclesiastical and temporal courts, the former “punishing all sinful enormities for the sake of reforming the private sinner” while the latter policed swearing’s effect on the public morals.255 The American cases are consistent.256
Even if swearing were analogous to modern fighting words, it would not support current doctrine because it was not a strict liability offense. Conviction was impossible without intent to vilify or demean the Christian faith. The Pennsylvania Supreme Court called a “general, malicious, and deliberate intent to overthrow Christianity . . . . the line of indication, where crime commences, and the offence becomes the subject of penal visitation.”257
Conclusion
In 2019, the nation’s greatest living First Amendment scholar wrote that “[t]he cumulative impact of [the Supreme Court’s] decisions is to make it unlikely that a fighting words law could survive.”258 On this view, prosecutions organized under the doctrine are little more than “the still visible beams of an already extinguished star.”259 Yet recent decades have seen hundreds of recorded decisions and surely scores of indictments that never reached the law reports. Nearly all of these cases proceeded under a strict liability rationale relentlessly rejected at the Founding. Modern Americans are in this respect denied a measure of freedom once enjoyed by their forefathers.