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Introduction
The first amendment to the U.S. Constitution- in its entirety- establishes that Congress shall make no law respecting an establishment of religion, prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. On its own, the first amendment does little to define free speech, or otherwise outline what an impairment of free speech may look like. Instead, it was through rigorous judicial review over the last century that there became any indication that free speech did not, in fact, refer to the explicit right to say whatever one wants whenever one pleases. Supreme Court cases like Chaplinsky v. The State of New Hampshire established an unprotected category of speech referred to as fighting words, and subsequent cases continued to narrow the definition of such words.
With only precedent to determine the liberties citizens can take with speech, the otherwise open-ended right leaves room for the discrepancy in how Americans feel they can speak to and about one another. In a time where political and social conversations are plagued by concerns over free speech infringement, it is now more important than ever to create a directly outlined definition for the types of speech that are actually protected under the first amendment and to further explore the impact of protections of bias-motivated speech. If political leaders and other public influencers feel empowered to publicly engage in hate speech, it can be reasonably expected that their constituents and followers will as well. That level of social influence is dangerous to both productive conversation and participation in government. In order to protect and promote these ideals, there needs to be a further interpretation of the first amendment right to free speech in the form of judicial review, as its current obscurity lends itself greatly to social and political discord.
Background or Context
It should be clarified that an action can only be considered a true violation of free speech if it is one that has been sanctioned by the local, state, or federal government in the form of legal action taken in response to a citizens chosen mode of expression. While this distinction is what truly matters in a court of law, the scope of the issue this exposition seeks to address encompasses both this definition, as well as the general publics impression of what the obstruction of free speech looks like. More specifically, this is in reference to the common misconception that the immunity to legal action for engaging in hate speech extends so far as to shield individuals from the societal repercussions that may arise from it as well. In a recent case brought to the Supreme Court by Houston politician David Buren Wilson, the question presented was if the First Amendment restricts the authority of an elected body to issue a censure resolution in response to a member’s speech. The court ultimately ruled that no, censure resolutions by an elected body are not an obstruction of that members freedom of speech. In deliberation, multiple justices objected particularly to one insinuation by the defense that elected officials could be subject to censure for spouting racial slurs on the floor, but not outside of that setting in any case whatsoever. In response, the court reasoned that a censure resolution was no more than an exercise of free speech on behalf of the elected body.
This case reveals a major source of the misunderstanding Americans have of their first amendment rights, as it demonstrates that even elected officials fail to grasp the difference between the infringement of their rights and the mere consequences of their actions. Americans might be able to reach a more mutual understanding of their speech protections if there were more in the way of clearly outlined limitations, but as it happens much of the trouble with free speech is apparent in how it has managed to confound the justice system for decades. Attempts to categorize different types of speech have produced mixed results in numerous cases, but perhaps one of the most effective steps towards elucidating the types of speech meant to be protected by the first amendment was created by the Fighting Words Doctrine.
Government Connection
As defined by the Supreme Court of the United States in the 1942 case Chaplinsky v. New Hampshire, fighting words are those which by their very utterance, inflict injury or tend to incite an immediate breach of the peace. The court continued that It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ This is known as the Fighting Words Doctrine. Fighting words are considered unprotected under the first amendment, and since the initial doctrine, have been redefined by the court to provide more clarity on several occasions. Most notably in the 1989 ruling of Texas v. Johnson, the Supreme Court narrowed the definition to mean words that are a direct personal insult or an invitation to exchange fisticuffs. In this case, Gregory Lee Johnson burned an American flag as part of a political demonstration in Dallas, Texas in protest of policies instituted by the Reagan administration. Because the burning of the flag was determined to be a form of symbolic speech, and also not meant as a direct insult or personal invitation to violence, it was ruled that the act did not constitute fighting words- and was therefore protected under the first amendment.
Similarly- in the 1971 case of Cohen v. California, the Supreme Court ruled that California man Paul Cohen was unconstitutionally convicted and sentenced for wearing a jacket that read FUCK THE DRAFT. STOP THE WAR. It was determined that the act did not constitute fighting words, as it was not directed at any person or group in particular, and that No individual actually or likely to be present could reasonably have regarded the words on appellants jacket as a direct personal insult. The court deemed that while potentially offensive, Cohens jacket was protected under the first amendment. Through the tedious deliberation over each of these cases, the Supreme Court established that the first amendment protects the right to engage in symbolic speech like burning the flag in protest, but that actions of that nature could constitute fighting words if they are deemed to tend towards an incitement of violence. Furthermore, this distinction was contingent upon the presumed presence of any individual that may reasonably take personal offense to the speech or action in question.
A more recent case promoting a significant (and contrary) revision to the Fighting Words Doctrine was R.A.V. v. City of St Paul in 1992. The case initially involved a group of teenagers who assembled a rough-hewn cross, which they then burned on the lawn of a black family. One of the teens was charged with a local bias-motivated crime ordinance, which the U.S. Supreme Court ultimately ruled to be overly broad and facially invalid under the first amendment. The ordinance was initially invoked in conjunction with the excesses of the Fighting Words Doctrine- which the Supreme Court gave some merit to, but held invalid regardless on the basis that it ‘prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses. Justice Antonin Scalia provided in the majority opinion that upholding the ordinance would involve the court in viewpoint-based discrimination, reasoning that under the ordinance, for example, one could hold up a sign declaring all anti-semites are bastards but not that all Jews are bastards. With this ruling, the court further revised that even if words are found to constitute fighting words, the first amendment will still protect against restrictions rooted in viewpoint discrimination.
Analysis
As it stands right now, the Fighting Words Doctrine (in alignment with its successive revisions) holds that speech can be prosecuted on the grounds of fighting words if it tends to incite an immediate breach of the peace if it is a direct personal insult or invitation to fisticuffs, and if there is no motivation to punish based on disapproval of the ideas expressed. These stipulations for classification as fighting words create a strong basis for an argument that many forms of hate speech should be classified as such. The case of R.A.V. v St. Paul provided the Supreme Court with an opportunity to expand the fighting words doctrine to include some of these types of speech within a specific set of circumstances. The courts ruling on the matter, however, instead rendered the doctrine nearly useless against cases of harmful bias-motivated speech, simply based on the premise that speech itself is entitled to be bias-motivated.
The Supreme Court stated that the St. Paul bias-motivated crime ordinance prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses and fails to consider that the identity of the addressed contributes a great deal to how likely they are to feel insulted and threatened by a targeted expression of aggression. In alignment with the rulings of Cohen v. California and Texas v. Johnson, this is exactly the type of consideration that should be measured when assessing the potential of speech to escalate a situation to violence. While the concern of ruling in alliance with either of the viewpoints expressed is a present and valid one, it neednt be considered here- as precedent holds that this was not as the court stated, otherwise permitted speech. In Justice Scalias example of the two signs- one berating all Jewish people and one berating all anti-semites- he fails to account for the atrocities committed against the Jewish People by anti-semites. For that reason alone, a person of Jewish heritage should reasonably be expected to have a strong emotional reaction to a sign that says All Jews are bastards. Scalias argument- which operates on the insinuation that the devotion of anti-semites to being anti-Semitism is comparable to that of the Jewish People to the worlds oldest monotheistic religion- seeks to frame viewpoint discrimination as unavoidable in this discussion. His hypothetical- which essentially formed the backbone of the ruling- fails to accurately parallel the actual facts of the case the court was presented with. The teenagers ideology itself was never in question, and the action of burning a cross is one that has long since been used as a known intimidation tactic against Jews and African Americans. While the practice itself has been defended in courts on the grounds of free speech, the decision to burn a cross on the property of a particular African American family demonstrates very clear intent for direct personal insult. Additionally, given the associations of the act with countless violent crimes against black people in the past, it should be very reasonably expected that to target a black family with this action would promote an immediate breach of the peace. The court in no way needed to disapprove of the ideas being expressed in order to determine that the act could constitute fighting words solely on the premise of it being a targeted and knowingly evocative statement against a particular family.
This analysis of the Supreme Courts deliberations in classifying types of speech isnt necessarily intended as a criticism of their rulings, but rather as a means of showcasing the volatility of the precedents they set. Additionally, it serves to find that there are grounds for further applications of the Fighting Words Doctrine potentially in the realm of hate speech in the modern era. If not for the courts abruptly contrary retraction of the Fighting Words Doctrine, the case of R.A.V. v. St. Paul could have opened up numerous successive discussions about protecting Americans from harmful modes of hate speech. Among the many potential considerations for if speech poses a danger could be the social and political authority an individual holds. This is to say that if a highly regarded politician or celebrity with a known loyal following were to publicly wish ill will upon members of a certain race or religion- and then members of said following felt moved to commit a hate crime against people of that group- that individual could theoretically be held accountable by virtue of the Fighting Words Doctrine. For a person to project ill intentions towards another person or group- armed with the knowledge that much of the general public looks to them as an example and could be moved to action by their words- would be an irresponsible use of that persons established position of social authority that demonstrates the clear potential to cause harm to the targeted party. This perspective disregards entirely the ideologies of the individual to insinuate only that the words of a person of known influence should be subject to more legal scrutiny, and that there is a basis for this scrutiny under the Fighting Words Doctrine.
Conclusion
The precedent set by the court in both the matters of Texas v. Johnson and Cohen v. California was that the likelihood of those present to be moved to violence by a given speech or action does, in fact, matter in considering if said speech constitutes fighting words. Ultimately the court ruled in favor of protecting the bias-motivated speech in the case of R.A.V. v. St. Paul, as the justices resigned themselves to avoid engaging in viewpoint discrimination. The deliberation leading up to that ruling, however, provided some useful insight into understanding how the Fighting Words Doctrine could theoretically be applied to combating some instances of hate speech while remaining clear of viewpoint discrimination. Leaning heavily on the stipulations that speech can constitute fighting words if it tends to incite an immediate breach of the peace and if it is a direct personal insult or invitation to fisticuffs, a person of known influence could potentially be held accountable for publicly engaging in hate speech on the basis that their words are more capable of moving a group to action. If the court could further interpret the limitations of free speech to encompass an instance of this nature, it would prove incredibly beneficial to combating the spread and promotion of hate speech, as well as the subsequent effects that arise from the dissemination of these hateful ideologies.
Shielding the American public from hate speech is important as it would promote more productive and inclusive conversation, which lends itself to an overall more equitable and just government. If Americans are made to feel safe and respected in socio-political environments, they are more likely to feel inclined to participate in the conversation and contribute via civic duties like voting. As evidenced by the numerous Supreme Court cases invoking the tenuous Fighting Words Doctrine, implementing limitations on the protections of hate speech proves incredibly problematic and tedious- but not entirely impossible. If the courts could manage even the smallest step towards implementing limitations of this nature, it would open up the possibility for many a necessary conversation in further defining the first amendment right to free speech, and would ultimately promote a broader general peace among Americans.
Works Cited
- Anastaplo, George. Cohen v. California (1971); Texas v. Johnson (1989). In Reflections on Freedom of Speech and the First Amendment, 13339. University Press of Kentucky, 2007. http:www.jstor.orgstablej.ctt2jcjxf.22 This source summarizes the events that led to two major supreme court cases for the interpretation of free speech in America, and discusses their final rulings in detail.
- Chaplinsky v. State of New Hampshire. Legal Information Institute, Cornell University, https:www.law.cornell.edusupremecourttext315568.
- Fighting Words. Legal Information Institute, Cornell University, https:www.law.cornell.eduwexfighting_words.
- Goldberg, Erica. FREE SPEECH CONSEQUENTIALISM. Columbia Law Review 116, no. 3 (2016): 687756. http:www.jstor.orgstable43783393. This source helped me understand some of the different ways that the courts use free speech consequentialism to determine cases involving first amendment protections.
- Juhan, S. Cagle. FREE SPEECH, HATE SPEECH, AND THE HOSTILE SPEECH ENVIRONMENT. Virginia Law Review 98, no. 7 (2012): 15771619. http:www.jstor.orgstable23333530.
- Leader, Sheldon L. Free Speech and the Advocacy of Illegal Action in Law and Political Theory. Columbia Law Review 82, no. 3 (1982): 41243. https:doi.org10.23071122070.
- LII Staff. First Amendment. Legal Information Institute, Cornell University, 2 June 2021, https:www.law.cornell.eduwexFirst_Amendment.
- Liptak, Adam. Supreme Court Hears Free Speech Case on Politicians Censure. New York Times, 2 Nov. 2021, https:www.nytimes.com20211102uspoliticssupreme-court-free-speech-censure.html
- Mannheimer, Michael J. The Fighting Words Doctrine. Columbia Law Review 93, no. 6 (1993): 152771. https:doi.org10.23071123082.
- Scalia. R. A. V. V. City of St. Paul, 505 U.S. 377 (1992). Legal Information Institute, Cornell University, 22 June 1992, https:www.law.cornell.edusupcthtml90-7675.ZO.html.
- Sebastian, Raymond F. Obscenity and the Supreme Court: Nine Years of Confusion. Stanford Law Review 19, no. 1 (1966): 16789. https:doi.org10.23071227052.
- This source provided me with insight into how the Supreme Court has handled other attempts to classify other types of unprotected speech like Obscenity.
- Seidman, Louis Michael. CAN FREE SPEECH BE PROGRESSIVE? Columbia Law Review 118, no. 7 (2018): 221950. https:www.jstor.orgstable26524959. In this essay, author Louis Michael Seidman attempts to outline the ways in which the American notion of free speech is not conducive to actual progressive ideas.
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