Is "I think black people should be enslaved" fighting words? What about "All jews should be gassed"? Where do torch-wielding mobs marching down the street fit into all this?
Is "I think black people should be enslaved" fighting words? What about "All jews should be gassed"? Where do torch-wielding mobs marching down the street fit into all this?
See trope 7 from Ken White, a noted lawyer and first amendment expert - https://www.popehat.com/2015/05/19/how-to-spot-and-critique-...
This is not a theoretical problem. There have been ~50 hate killings in the US this year. (And we haven't even had a mass shooting.)
Where judges chose to draw the bar is incidental to the fact that this exception exists. That they chose to draw it where they did is a legal question, not a moral one.
The fact that judges draw the bar rather than you are me is critically important to prevent abuse. Innumerable boorish people would consider calling out their behavior to be "fighting words".