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The defendant's attorney argued that saying the n-word is not a crime.
The court said that while the First Amendment does protect use of the slur, “an objectively reasonable person would find the totality of [the defendant's] statements constituted explicit and implicit threats that were likely to incite a breach of the peace or violent reaction and alarm the listener.” While there's no indication that protesters in Charlottesville plan to take the free speech issues to court, there's enough precedent to make a case that certain racist and homophobic slurs were not protected by the First Amendment.
The Court defines fighting words as "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Considering that Saturday's rally turned violent, and led to one counterprotester's death, it's important to analyze the role that language may have played in sparking the violence and whether it was protected by the First Amendment.
While the generic anti-Semitic and anti-immigrant rants didn't rise to fighting words, free speech experts believe right-wing demonstrators may have gone too far when they called specific people "ni**ers" or "faggots." These could be interpreted as fighting words because they are slurs directed at certain individuals that would lead a reasonable person to retaliate.
What is unclear is whether their words were likely to spark immediate violence.
Considering that the African-American woman was across the street from demonstrators, and that counterprotesters were separated by barricades, lawyers could argue that it's unlikely their words would trigger immediate violence.
"Most fighting-words cases involve one-on-one, face-to-face insults," Hudson wrote in an email.
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Based on that, Mala Corbin says use of "faggot" and the n-word at Saturday's demonstration would clearly fit this category of unprotected speech.
But over the years, Supreme Court justices have shown an aversion to the "fighting words" doctrine, out of concern that it might be used to suppress protected political speech.
And some of those rulings involved similar racist slurs.
Here are some examples Hudson points to when state courts have found certain language not protected under the fighting words doctrine: In 1999, a Minnesota appeals court found that calling a police officer a white, racist “motherfucker" and wishing his mother would die was not considered free speech.
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In general, for someone to prove that language is not protected under the "fighting words" doctrine of the First Amendment, they have to show three things: first, that the language is, in fact, an insulting epithet.