Subsequent test cases in 1969, 1972, 1992, and 1999, have narrowed the doctrine nearly out of existence. (It is worth noting that in most cases the statutes were meant, in theory or practice, to restrict opprobrium directed at police officers). The fighting words doctrine is rarely applied today, even more rarely upheld, and the tenor of speech most of us encounter in our daily lives just 61 years after Chaplinsky is testimony to a rapidly changing standard of what "opprobrium" is, and how much of it, if any, constitutes "incitement."
Nevertheless, the doctrine does point to an important distinction between the form and content of speech, one also indicated by numerous laws, still on the books, against "disturbing the peace." What are we to do with those? The concept seems quaint and Mayberryish today, but is it totally deprecated? It is certainly not an abridgement of protected speech that my neighbor cannot play loud music outside my window late at night, for example, whetever its merits.
When the disruption is measured in opprobrium rather than decibels, US case law sets the bar very high. In 2003 the high court ruled that public cross burning is only a crime if it can be shown that its intent was to intimidate. (Imagine, by contrast, if I could not get my neighbor to turn down his music unless I could prove he was playing it with ill-intent.)
The fighting words doctrine is based on the presumption that there is something inherently disruptive about being provoked; that being insulted or challenged to a fight breaches a personal "peace" or integrity in the same way that loud noise or bright lights do, as a kind of assault. Such notions trace back to our "honor culture" roots dating from time immemorial. This does not square well with our modern sense of ourselves as creatures of reason, raised on the maxim that "words many never hurt me," who have finally supplanted the code of honor with the code of law. But it was a mere 10 generations ago that Alexander Hamilton, "founding father" of the world's first modern democracy, was killed by Vice President Aaron Burr over the defense of his honor. Just 42 years ago, in the year of my birth, two French members of Parliament "settled" an insult with their rapiers (neither was seriously hurt.) The "winner" was a socialist.
Can we, who in living memory banned Lolita and Lady Chatterly's Lover, criminalized personal insults in the public square, and even settled scores at the point of a sword really afford to be cavalier about who can, and who cannot "take a joke"? More than once I have seen the remark (most often in blog comments) that the recent attack on Kurt Westergaard's life proves he was onto something when he implied Muslims were violent in his cartoon. This (if it were true) would present serious problems for the free speech defense, which relies on a common agreement that words are not harmful, that honor is subservient to free expression--an agreement we were not expected to have made in the West just 60 short years ago.
Indeed, race-baiting is an age-old justification for bigotry. The undisputed masters of it were the Nazis, but we shouldn't use the extremity of the example to pretend that any of us are not capable of it (which is, after all, just a more subtle version of race baiting, as Will Self recently observed).
If I am perceived as going back on my earlier words that Kurt Westergaard was not to blame for the attack on his life, let me re-affirm that he is not. No mechanism of incitement that I am aware of takes 3 years to percolate, for one thing. And even if the attacker's response had been instantaneous, he is just as responsible for understanding that a code of honor (if it was this that motivated him, and not, as seems more likely, an organized attempt at sowing terror and intimidation) does not obtain in Denmark. We live in more sophisticated times than that.
Rather I am trying to draw out the possibility, which I find very plausible, that free speech and rule of law are a rationalization in this case for a type of combat that is being carried out in a much more atavistic idiom, with the intent not (primarily) to criticize, but to retaliate and shame. Such an interpretation would not weaken the protections of speech and safety Westergaard enjoys as a Danish citzen, but it might provide a more honest look at the dynamics of the tensions between the Islamic world and secular modernity.
I'll close with a quote from Talel Asad from a paper I have earlier cited:
The problem of blasphemy... is a European obsession. For a secular society that doesn’t acknowledge the existence of such a thing as blasphemy it is quite remarkable how much public discourse there is about it – and about those who complain of it or claim to be affronted by it. Quite remarkable, too, is the obsessive need to repeat again and again the words and images that secularists think will be regarded as blasphemy. Who, one might wonder, are these defenders of worldly criticism trying to convince? It is too simple, I think, to claim – as some Danish commentators have done – that the publication of the cartoons merely sought to overcome the crippling fear that Europeans had of criticizing Muslims. But there is certainly something complicated going on beyond the courageous demonstration of political freedom, something that has to do with the attempt at re-assuring the limitless self.
Liberal Europeans have repeatedly said that modernity – their modernity – consists precisely in the continuous re-creation of individual experience and political-economic futures through the exercise of auto-critique, yet in the case of their relationship to European Muslims a limit seems to have been reached, a limit that is insupportable. Their conception of criticism is motivated by the dark face of religion, ours by secular debate, democratic openness, and joyous satire; their anger undermines freedom, ours informs its defense; they seek to impose limits (in the idea of blasphemy), we overcome them (by secular critique).