Not sure they are unconstitutional. The "fighting words" doctrine has always been recognized as an Amendment I exception, at least under certain circumstances.
Provocation is a valid defense, certainly seems like it in this case, but the LAW that criminalizes "fighting words" isn't per se unconstitutional.
The doctrine comes from Chaplinsky v. New Hampshire (1942), where the Supreme Court held that certain speech falls outside constitutional protection because it's not essential to any exposition of ideas and has low social value compared to the harm it causes. Fighting words were defined as words that by their very utterance inflict injury or tend to incite an immediate breach of the peace — essentially, insults directed at a specific person likely to provoke a violent reaction on the spot.
The category has been narrowed heavily in practice since 1942. The Court has never upheld another fighting-words conviction, and cases like Cohen v. California (1971, the "F*** the Draft" jacket case) and Gooding v. Wilson (1972) struck down convictions for speech that offended but didn't target a specific individual with an imminent threat of violence. Courts have also rejected the idea that words merely because they're racist, sexist, or otherwise deeply offensive count as fighting words — the doctrine requires a face-to-face, direct provocation likely to trigger immediate violence, not just offensive content.
I do not believe that telling off an 8 year old kid would likely be a direct provocation likely to trigger immediate violence.
Fighting words....in states that allow it....is not a criminal charge. Its a defense against a battery charge. Calling somebody a bad name is clearly constitutionally protected speech.
What the government is trying to do here is turn speech into an act. Federal courts have always rejected that except in cases of solicitation, fraud and conspiracy/bribery. Speech is protected unless it is directed to inciting imminent lawless action. Insults do not fit any of the above and are constitutionally protected speech.
Does calling someone “Hitler” or a “Nazi” constitute “fighting words”? If so, why are people never arrested for using those terms in public, and directing them at specific people, such as ICE employees? If those aren’t “fighting words,” why aren’t they?