Immigration authorities are being told "incitement" and "fighting words" are not protected by the First Amendment:

[applegrove]

Immigration authorities are being told “incitement” and “fighting words” are not protected by the First Amendment, per documents leaked to me: www.kenklippenstein.com/p/immigratio...

— Ken Klippenstein (@kenklippenstein.bsky.social) 2026-01-13T20:45:40.585Z

[Klarkashton]

1. There is a civil war in progress. It only took

Trump a year to utterly fuck things up with this crazy shit.

[Trueblue1968]

2. Lies lies lies lies. It is protected.

#TrumpLies

[Fiendish Thingy]

7. It is not protected - see post #3

And numerous past rulings by the courts.

[dpibel]

19. Really? That black and white? See post 16. NFT

[stopdiggin]

3. correct. those are accepted and established exceptions (within robust speech advocacy)

https://www.thefire.org/research-learn/unprotected-speech-synopsis

The categorical exceptions to the First Amendment are few, narrow, and carefully defined. To protect freedom of expression, they must remain that way. But they do exist, each for good reason.

by category - speech that falls outside of constitutional protections. INCITEMENT, TRUE THREATS, FIGHTING WORDS, OBSCENITY, DEFAMATION, FRAUD and PERJURY, INTEGRAL to CRIMINAL CONDUCT.

How such are interpreted is always the fly in the ointment. A common conundrum, that is ever so hard to get away from - and has forever been that way. But the statement - simply on its face - is not incorrect.

[RockCreek]

5. Is this read so that the types of speech listed

need to be "INTEGRAL to CRIMINAL CONDUCT."?
Or is it read some other way?

[stopdiggin]

8. the link probably does a better job, but ...

No. Each capitalization is a category of unprotected speech unto itself. They do not need interaction or compounding.

Generally - extorting 'protection' from your neighbor under threat to burn his house down - or phoning in ransom demand in a kidnapping - or issuing instruction rob a bank, or kneecap an informant .... All issue from criminal intent , regardless of whether the action is ever actually carried out.

Speech Integral to Criminal Conduct
In Giboney v. Empire Storage & Ice Co. (1949), the Supreme Court held the First Amendment affords no protection to “speech or writing used as an integral part of conduct in violation of a valid criminal statute.” A robber’s demand at gunpoint that you hand over your money is not protected speech. Nor is extortion, criminal conspiracy, or solicitation to commit a specific crime. Abstract advocacy of lawbreaking remains protected speech.

https://www.thefire.org/research-learn/unprotected-speech-synopsis

[RockCreek]

9. Thank you

This is really useful, and the link is great. I'm going to look over the FIRE site in more detail later.

[applegrove]

10. So you can jump infront of a car that is moving?

That's not what the retired ICE guy is saying.

[stopdiggin]

11. have no idea what you're saying - or how it relates to what I said. - - -(nt)-

[applegrove]

12. I was not implying you are responsible for what the Government

says or does. I guess I was not clear. Sorry. Here is the article I was referring to:

https://www.democraticunderground.com/100220939235

Retired ICE agents were working in another world back in their day. The norms were different.

[stopdiggin]

15. the OP header says : "being told .. not protected .. "

"Immigration authorities are being told “incitement” and “fighting words” are not protected by the First Amendment"

I merely affirmed that that is a correct reading, according to many legal sources.
The proof of course is in the pudding .. (or 'interpretation' as it were)

The actions of many 'agents' are of course far and wide of the accepted norm. ( and quite possibly the law? ) ( although, again - so, so much easier to say - than to enforce or actually bring to bear. )

[dpibel]

16. I think it's a bit more nuanced

Last edited Wed Jan 14, 2026, 10:30 PM - Edit history (1)

I entirely agree with you that application of any of these exceptions is pretty subjective and subject to surprising results.

That said, I'm not clear on how incitement would apply at all, and it appears that the fighting words exception would very likely not apply to ICE, given the application of the principle.

From your linked source, here's the general definition of incitement:

Incitement — speech that is both “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” — is unprotected by the First Amendment.

That can clearly cover a multitude of sins--I suppose, read literally, it would be perfectly legitimate to pass a law prohibiting people from saying, "There's no traffic coming. We can cross against the light."

But I'm not seeing how this really applies to the ICE/citizen encounters we've seen.

Clearly, fighting words is the more likely argument ICE would make. But that exception, as defined (I'm relying on the source you've linked--I certainly haven't researched these points myself) doesn't seem to apply to what ICE is feeling sad (or murderous) about.

Especially given that, according to this related article on the website you cite, you can be pretty nasty to law enforcement and they're supposed to be able to take it.

Here's what they say:

The very next year, in Gooding v. Wilson (1972), the Court cited Cohen and stated that speech that is “vulgar or offensive . . . is protected by the First and Fourteenth Amendments.” Then, the very next term, the Court reaffirmed this stance in Hess v. Indiana (1973) by finding that the pronouncement “we’ll take the fucking street later” did not constitute fighting words.

In assessing the fighting words doctrine at this point, it is important to note the speech involved in Gooding. While assaulting a police officer, Gooding shouted, “White son of a bitch, I’ll kill you.” “You son of a bitch, I’ll choke you to death.” and “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.” If this speech doesn’t constitute fighting words, one would be hard-pressed to think of speech that would qualify.

The bolded part in the first quoted paragraph pretty clearly means that the kind of cursing at ICE officers we've seen on videos is constitutionally protected. It doesn't fall within the fighting words exception.

And if the language in the second quoted paragraph is not prohibited when aimed at a law enforcement officer, it is, as fire.org says, hard to think of speech that would qualify.

As a fun bonus, it appears that the standard is different for law enforcement than for citizens at large. From the same link above:

The Court also reversed a fighting words-type conviction in Lewis v. New Orleans (1974), ruling that the New Orleans ordinance that prohibited the use of “obscene or opprobrious language” toward police officers was too broad. In a concurring opinion, Justice Lewis Powell reasoned that police officers, because of their enhanced training, are expected to exercise greater restraint than the average person.

(Emphasis added.)

Finally, it's a question whether we're talking about criminal or civil liability. If the harm (as in, for instance, defamation) is purely compensable, it seems that an ICE officer faced with nasty words might have a case for damages. But I'm not at all sure it would constitute an arrestable, let alone capital, offense.

[stopdiggin]

17. I would agree with every single word there

And one would HOPE that our law enforcement is trained with as least as much information as you and I (in short order) put our hands on. However - neither you nor I are particularly confident on that point currently.
( And it absolutely goes back to leadership. the thugs in the streets are not acting in a vacuum - or without feedback from superiors. Yes? )

[bluestarone]

4. Well, THEY are the ones inciting and THEY are the ones

Using fighting words.

[Bread and Circuses]

6. So, when DonPedo said that he could shoot someone on 5th Ave ....he should have been arrested ! Right?

[kwolf68]

13. More of the same

-I shot that person because he used "fighting words"
-Antifa
-War on terror

Just make it up as you go along, nothing can be defined, or everything can all at once. Hey we went after that mob because they were "antifa" and we have to bomb another nation because we are waging "war on terror" and of course kill someone and just say they incited me. Case Closed. Move along, you will be able to get out of jail free as we see the rise of the Fourth Reich.

[applegrove]

14. That is why they are investigating Becca, Renee Good's wife.

Renee said "I'm not angry at you" so she can't be blamed for "incitement" or "fighting words". Ross moved the cell phone he was using to film the scene to his left hand at the time (or a little bit after) when he spoke to Becca, freeing up his gun hand before he was in front of the car.

[TommyT139]

18. If the Constitution doesn't apply to everyone

...it applies to no one.

They are outlaws, in the original sense.

[Takket]

20. if i get in front of a crowd protesting ICE, with a bullhorn, and yell "you better fight or your not going to have

a country anymore"?

[applegrove]

21. Exactly. Incitement if there ever was a case.