Abstract
This study investigates whether and how gender influences outcomes in fighting-words cases. Fighting words are a category of unprotected speech characterized as personal insults directed at individuals and that are inherently likely to provoke violence. To determine whether courts are less likely to consider disruptive statements aimed at women as fighting words, a strategic content analysis was conducted on a sample of 124 state appellate and supreme court cases. Results indicated that when judges and justices assessed disruptive, insulting speech directed toward women, they classified it as fighting words 33 percent of the time. However, when speech addressed to men was evaluated, it was deemed fighting words 52 percent of the time. This inconsistent application of the fighting-words doctrine, and ultimately the protections of the First Amendment, suggests that women are expected to endure a greater level of verbal abuse than their male counterparts. Recognizing the difficulty of removing implicit bias from the assessment of whether speech is likely to provoke violence, we call on the Supreme Court to either reshape that prong of the fighting-words test or remove it altogether.
Published Version
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