In 1942, the Supreme Court sustained the conviction of a Jehovah's witness who addressed a police officer as a "God dammed racketeer" and "a damned facist" (Chaplinksy v. New Hampshire).  The Court's opinion in the case stated that there was a category of face-to-face epithets, or "fighting words," that was wholly outside of the protection of the First Amendment: those words "which by their very utterance inflict injury" and which "are no essential part of any exposition of ideas."

Capari parody ad at issue in Hustsler v Falwell.  (Click on image above to see larger image.)
LINK TO SITE WITH DETAILED INFO ON  FALWELL V FLYNT TRIAL

In 1988, the Supreme Court considered a jury award of damages against Hustler Magazine for publishing a malicious and untrue story about Rev. Jerry Falwell.  The piece, labeled in small print "a parody," stated that Falwell's first sexual encounter was with his mother while drunk in an outhouse.  A Virginia jury concluded that the Hustler piece constituted "intentional infliction of emotional distress" and awarded $150,000 to Falwell.  The Supreme Court unanimously reversed the award, saying that it saw no principled basis for distinguishing the Hustler article from hard-hitting political cartoons and other speech clearly worthy of First Amendment protection.  The Court distinguished the sort of character assassination practiced by Hustler from the face-to-face insult threatening an immediate breach of the peace that was in issue in Chaplinsky.

American Booksellers v Hudnut (1986) involved a First Amendment challenge to an Indianapolis civil rights ordinance that made it a crime to distribute materials that depicted women as "sexual objects for domination, conquest, or use."  The Sixth Circuit Court of Appeals invalidated the ordinance calling it "thought control."  The Court ruled that the First Amendment gives government no power to establish "approved views" of various subgroups of the population.

R. A. V. considered a challenge to a St. Paul ordinance punishing the placement of certain symbols that were "likely to arouse anger, alarm, or resentment on the basis of race, religion, or gender."  Robert Victoria, a teenager, had been convicted of violating the ordinance after having been found to have burned a cross on the yard of a black family. The Court, in an an opinion by Justice Scalia, reversed R. A. V.'s conviction on the ground that the ordinance unconstitutionally criminalized some hurtful expression (specifically that aimed at racial and religious minorites) and not other hurtful expression (that aimed at other unprotected groups) based on the political preferences of legislators.  Scalia makes clear that "fighting words" is not, as Chaplinsky had suggested, a category of speech that is wholly outside of First Amendment protection.

A year after R. A. V., the Supreme Court unanimously upheld, in Wisconsin v. Mitchell, a statute that imposed stiffer sentences for racially-motivated assaults than for other types of assaults.  The Court reasoned that the statute did not violate the First Amendment because it was aimed primarily at regulating conduct, not speech.

In Virginia v Black (2003), the Court divided on the question of whether a state could prohibit cross burning carried out with the intent to intimidate.  A majority of the Court concluded that, because cross-burning has a history as a "particularly virulent form of intimidation," Virginia could prohibit that form of expression while not prohibiting other types of intimidating expression.  Thus, the majority found the cross-burning statute to fall within one of R. A. V.'s exceptions to the general rule that content-based prohibitions on speech violate the First Amendment.  Nonetheless, the Court reversed the Virginia cross-burner's conviction because of a jury instruction that might produce convictions of cross-burners whose motivation was ideological--and not an attempt to arouse fear.  Justice Thomas dissented, arguing that cross-burning is conduct, not expression, and therefore its suppression does not raise serious First Amendment issues.

Anti-gay protesters from the Westboro Baptist Church of Fred Phelps.

In 2010, the Supreme Court granted cert in a case that will consider whether to uphold a jury verdict against a Kansas-based anti-gay church group that picketed the funeral of a marine who died on duty in Iraq.  (The group believes that soldiers' deaths are a form of punishment against America for tolerating homosexuality).  A Maryland jury found that the picketing and Internet postings by the group targeted the soldier's parents and constituted intentional infliction of emotional distress.  The Fourth Circuit overturned the jury's award, noting that the group complied with all local ordinances and expressed only opinions (rather than false statements of fact).  The court also noted that the family of the dead marine learned of the group's protest only after the funeral. 

Al Snyder, father of Matthew Snyder, whose funeral was picketed by Phelps family members (ABA photo)

In 2011, the Supreme Court's announced its decision in Snyder v Phelps.  Writing for an 8 to 1 Court, Chief Justice Roberts noted that the Westboro group's speech generally related to a matter of public concern, that the group complied with all city ordinances and police department requests, and that the funeral itself was not disrupted.  Given these facts, Roberts wrote, "We cannot react to [Snyder's] pain by punishing the speaker.  As a nation we have chosen a different course--to protect even hurtful speech on public issues to ensure that we do not stifle public debate."  Justice Alito dissented, arguing that at least some of the group's speech directly attacked the Snyder family and therefore did not relate to a matter of public concern.