[1] It held that "insulting or 'fighting words', those that by their very utterance inflict injury or tend to incite an immediate breach of the peace" are among the "well-defined and narrowly limited classes of speech the prevention and punishment of [which] ... have never been thought to raise any constitutional problem."
The court upheld the arrest and wrote in its decision that: 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 injury or tend to incite an immediate breach of the peace.
In Street v. New York (1969), the Court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere offensiveness does not qualify as "fighting words".
Texas v. Johnson (1989) redefined the scope of fighting words to "a direct personal insult or an invitation to exchange fisticuffs" in juxtapose to flag burning as symbolic speech.
Lone dissenting Justice Samuel Alito likened the protests of the Westboro Baptist Church members to fighting words and of a personal character, and thus not protected speech.
[12] Justices Gummow and Hayne held that in the context of the section, '"abusive" and "insulting" should be understood as those words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to provoke unlawful physical retaliation'.
[13]: 87 Chief Justice Gleeson took a slightly different approach to the construction of the section, finding that: It is open to parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, and no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur.
In the United States, the modern standard was defined in Brandenburg v. Ohio (1969), where the Supreme Court reversed the conviction of a Ku Klux Klan leader accused of advocating violence against racial minorities and the national government.