Three Degrees of Provocation

With all of the discussion and debate in recent years about freedom of speech and expression, particularly what limitations can or should be placed on expression, I thought it would be helpful to explore the nature of provocation and to propose a modest model as a lens for examining provocation.

Protected and unprotected speech

The focus of this informal paper is on forms of provocation which are protected by the First Amendment of the U.S. Constitution.

There are indeed forms of provocation which the courts have found are not protected by the First Amendment. Unprotected speech includes incitement to immediate violence, fighting words, defamation (slander and libel), obscenity, child pornography, intimidation, and credible threats of immediate harm, among others.

On the flip side, the courts have found that the First Amendment does protect all manner of offensive, repugnant, distasteful, disagreeable, and obnoxious speech and other forms of expression.


A dictionary-like definition of provocation or provocative speech would be any speech or expression that causes an emotional or visceral reaction from the target of that expression, typically but not necessarily intentional.

That’s a fairly wide range of meaning, so I propose that it should be divided into three distinct ranges. Not that the divisions are truly bright lines. It should typically but not necessarily be possible to categorize a given expression into exactly one of these three categories.

My three proposed categories are:

  1. Unintentional or incidental provocation.

They are numbered the same as physical burns, with first degree being the mildest and least harmful, and third degree being the severest and most harmful.

First degree provocation: Unintentional or incidental provocation

The speaker may be honestly and sincerely expressing their opinion or feelings or an actual fact with no intention of harming or offending anybody, but it just happens than some listeners, readers, or viewers may indeed be offended.

There are some variations even within this category:

  • The listener may have misheard the speaker.

Second degree provocation: Intentional, but well-meaning provocation

The speaker may intentionally be using provocative speech but for a benevolent, well-intentioned purpose, such as:

  • A teacher challenging students to look beyond their limited worldviews and biases.

Third degree provocation: Malevolently-intentioned provocation

Not quite to the point of outright incitement to immediate violence, but nonetheless with the intention of offending and otherwise provoking with no sense of benevolent effect, such as:

  • Offending

Factual characterizations which have a sound basis can still have a significantly negative effect and still be provocative. Granted, they could be subdivided into two subcategories based on whether they were presented in a relatively neutral, matter of fact manner with a relatively neutral tone of voice, or were presented in a scathing, negative, mean-spirited tone of voice.

Still protected

As disgusting as third-degree provocation may be, all three of these degrees of provocation are still constitutionally protected.

The challenge

Although even third-degree provocation is protected by the constitution, the difficulty is that there is no clear bright line between what is constitutionally protected and the unprotected speech of fighting words and the like. And even if well-meaning individuals can correctly discern a bright line, passions of the moment could cause otherwise well-meaning individuals to drift or leap or stumble across the line into the swamp of unprotected speech or even prohibited action.

Freelance Consultant