The ‘fighting words’ exception and Section 230 reform

On a cold December evening in 1980, Mark David Chapman laid in wait at the Dakota for John Lennon to return home. Chapmen shot Lennon in the back four times and then remained at the scene silently reading "The Catcher in the Rye" until he was arrested. Chapman reportedly identified deeply with the book's alienated teenager, Holden Caulfield, who rages against adult hypocrisy and phonies. Chapman reportedly was motivated to commit the murder because he reportedly viewed Lennon as a phony.

A year later, John Hinckley shot and wounded President Ronald Reagan. He had obsessively watched "Taxi Driver," a movie in which the main character, Bickle attempts to assassinate a United States senator running for president. Oddly, a copy of "Catcher in the Rye" was reportedly found later in Hinckley's possessions.

In neither case was the publisher of the book or movie sued (although Hinckley's psychiatrist was sued unsuccessfully for more than $14 million allegedly because he failed to properly diagnose Hinckley's mental condition). The reason? The First Amendment protects movies and books, even those depicting violence. The First Amendment, however, does not protect so-called "fighting words" that are likely to incite immediate violence.

The seminal U.S. Supreme Court case on "fighting words" is the 1942 case Chaplinsky v. New Hampshire, which examined the legality of a state statute barring offensive or annoying speech uttered to another in public places. Chaplinsky was arrested for violating the statute after claiming that religion was a racket and calling another person on the street "a [expletive] racketeer" and "Fascist." A riot ensued. The Supreme Court held that words which "by their very utterance, inflict injury or tend to incite an immediate breach of the peace ... 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."

The Supreme Court gradually narrowed the fighting words exception over the next few decades and has continued to apply the original two requirements for fighting words -- face-to-face communication that leads to an immediate breach of the peace. These limitations make application to speech in cyberspace difficult because the courts often don't view online speech as being face-to-face. As an example, in a case involving alleged fighting words posted on a MySpace internet page, the federal judge ruled that "[an] Internet page is not outside of the protections of the First Amendment under the fighting words doctrine because there is simply no in-person confrontation in cyber-space such that physical violence is likely to be instigated." Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 602 (W.D. Pa.2007), aff'd, 593 F.3d 249 (3d Cir. 2010), vacated, 2010 U.S. App. LEXIS 7362(Apr. 9, 2010).

After the violent attack of the U.S. Capitol on Jan. 6, shortly after a speech by President Donald Trump urging followers to "fight like hell" and continuing tweets disparaging lawmakers after the speech, the validity of the judge's reasoning that cyber speech cannot instigate violence is gone. The law related to speech in cyberspace, however, provides immunity for what would otherwise be non-protected fighting words.

As the 20th century ended, Congress wanted to foster development of the internet, so it enacted the 1996 Communications Decency Act. Section 230 of the Act distinguished operators of online platforms from "publishers" such as newspapers and gave them broad immunity from liability for the third-party content that appeared on those platforms. Section 230 states that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." There are some types of speech for which electronic platforms may be held liable, including child pornography, violation of federal criminal laws. And promoting of sex trafficking and prostitution. 47 U.S.C (e)(1), (e)(5)

In the wake of the deadly attack on the Capitol, a furious debate has broken out about Section 230. Without the immunity, would online platforms have moved sooner to shut down clearly untrue claims that the election was stolen from President Trump purportedly through voter irregularities? Those platforms clearly had the tools to do so. Section 230 includes a so-called "Good Samaritan" provision that allows online platforms to block or screen offensive material. And yet, those platforms have been extremely reluctant to identify or remove speech of the type that would be fighting words if uttered in someone's face.

In May 2020, Twitter invoked the "Good Samaritan" provisions of Section 230 to flag President Trump's tweets as possibly misleading. In fact, it could have gone even further and removed the false statements. However, Twitter did nothing about Trump's untrue tweets in late 2020 that the election has supposedly been stolen from him, and encouraging his supporters to "fight like Hell" at the Capitol.

Congress is now moving to revise Section 230. Earlier this month, Sens. Mark Warner (D-Va.), Mazie Hirono (D-Hawaii) and Amy Klobuchar (D-Minn.) introduced the Safeguarding Against Fraud, Exploitation, Threats, Extremism and Consumer Harms (SAFE TECH) Act that would eliminate immunity under Section 230 that acts as a bar lawsuits against social media for enabling cyber stalking, harassment, wrongful death, discrimination or injunctive relief. Instead, online platforms could use Section 230 as an affirmative defense and establishes a preponderance of evidence standard for plaintiffs to prove an allegation of harm arising from content published by a third party on an online platform.

While enumerating these specific subject matter for which online platforms will not be protected is useful, Congress would accomplish more if it passed legislation expressly extending the "fighting words" doctrine to speech in cyberspace that leads to immediate public unrest. 