i believe in us someday...

And now, it's time for the Free Speech Question of the Week! It goes something like this:

Elaine Mandel, an Al Gore supporter, runs into Ralph Nader at a party and says “Look at the mess your fucking ego trip got us into, you asshole.” Nader throws his drink (soda water only, of course) into Elaine’s face. Which of the following is most accurate?

(a) Elaine’s speech is not constitutionally unprotected fighting words, because Nader did not punch her or do anything else that was likely to seriously injure her.

(b) Elaine’s speech is constitutionally unprotected incitement under Brandenburg v. Ohio, because it was foreseeably likely to cause imminent unlawful conduct by Nader.

(c) Whether or not Elaine’s speech is constitutionally unprotected fighting words, the speech is constitutionally unprotected intentional infliction of emotional distress, because her main purpose in saying what she said was to insult Nader.

(d) Elaine’s speech is constitutionally unprotected fighting words if it tends to incite an immediate breach of the peace.

(e) Elaine’s speech is constitutionally unprotected because it involves an obscenity (“fucking”).

This is a real question posed by Professor Volokh in a past exam. The answer shall be revealed tomorrow.