Fighting words, incitement, true threats and the First Amendment

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The First Amendment protects free speech. Yet the U.S. Supreme Court says some kinds of speech are unprotected. This slide presentation addresses three kinds: fighting words, incitement to imminent …

The First Amendment protects free speech. Yet the U.S. Supreme Court says some kinds of speech are unprotected. This slide presentation addresses three kinds: fighting words, incitement to imminent lawless action, and true threats against individuals or groups of individuals.

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  • 1. Fighting Words Swine!
  • 2. Free speech or fighting words?
  • 3. Free speech or fighting words?    Fact: Chaplinsky, a Jehovah's Witness, stirred up an angry crowd with his proselytizing. Fact: He called a city marshal a "damned racketeer" and a "damned Fascist." Fact: The marshal arrested him under a state law that forbids offensive or derisive speech or name-calling in public.
  • 4. Fighting words are not protected Chaplinsky v. New Hampshire, 1942 “…The right of free speech is not absolute at all times and under all circumstances.” - Justice Frank Murphy, 1942
  • 5. Fghting words are not protected Chaplinsky v. New Hampshire, 1942 “There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. “These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.”
  • 6. Fighting Words Doctrine morphs
  • 7. Free speech or fighting words? Terminiello v. Chicago, 1949 Arthur Terminiello, an ex-Catholic priest, was charged with disorderly conduct after he gave a racist, anti-Semitic speech in a Chicago auditorium to the Christian Veterans of America.
  • 8. Free speech invites dispute Terminiello v. Chicago, 1949 Supreme Court overturned Terminiello's conviction, based on incorrect jury instructions. “...a function of free speech under our system of government is to invite dispute. It may indeed serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.” – Justice William Douglas
  • 9. Free speech or fighting words? Paul Cohen arrested for disturbing the peace through “offensive conduct” for wearing “Fuck the Draft” on his jacket in Los Angeles County Courthouse.
  • 10. “Fuck the Draft” not fighting words Cohen v. California, 1971 The epithet on Paul Cohen's jacket was not directed to the “person of the hearer.” Moreover, “no individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult.” In other words, fighting words must be directed at an individual within hearing distance.
  • 11. Free speech or fighting words? Gooding v. Wilson, 1971   Fact: Johnny Wilson, a Vietnam War protester, made threatening and insulting remarks to police officers. Specifically, he said: “You son of a bitch, I’ll choke you to death”; “White son of a bitch, I’ll kill you”; and “You son of a bitch . . . I’ll cut you all to pieces.” Fact: Police arrested him under a Georgia statute that prohibited anyone from using, without provocation, “opprobrious words or abusive language, tending to cause a breach of the peace.” The language had to be spoken to or about another person in his or her presence.
  • 12. Laws must be narrowly defined Gooding v. Wilson, 1971 The Supreme Court, in a 5-4 split decision, declared the statute unconstitutionally overbroad, finding the dictionary definitions of the adjectives “opprobrious” and “abusive” to reach beyond mere fighting words. The majority, led by Justice William Brennan, reaffirmed the notion that words may not be banned simply because of their offensive or vulgar nature.
  • 13. Free speech or fighting words?
  • 14. Free speech or fighting words? R.A.V. v. City of St. Paul    Fact: Robert Viktoria and other teenagers burned a cross on the fenced front lawn of an African-American family. Fact: Viktoria was convicted of several charges, including violating the St. Paul Bias-Motivated Crime Ordinance. Fact: The anti-bias ordinance states: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."
  • 15. Laws can't be content-based   In a controversial decision, the Supreme Court ruled that the City of St. Paul could not ban fighting words that were limited to just the ones it found objectionable – that is, words based on race, color, creed, religion or gender. Writing for the majority, Justice Antonin Scalia said: “It (the St. Paul law) prohibits otherwise permitted speech solely on the basis of the subjects the speech addresses.”
  • 16. Laws can't be content-based    Writing for the minority, Justice Byron White agreed that St. Paul's anti-bias law violated the First Amendment. But they rejected the reasoning of the majority. Instead, they argued, the government can't restrict speech just because it creates feelings of anger, alarm and resentment.
  • 17. Free speech or fighting words? Although the Supreme Court has reaffirmed the fighting words doctrine in spirit several times, it has never actually upheld a conviction based solely on fighting words. Despite more than 70 years of jurisprudence following the 1942 Chaplinsky case, courts still have a hard time drawing the line between free speech and fighting words.
  • 18. Free speech or fighting words? An Ohio woman cursed during a confrontation with a police officer. She was convicted of disorderly conduct.
  • 19. Free speech! City of Garfield Heights v. Yaro, 1999 An Ohio appeals court said her speech did not constitute fighting words.
  • 20. Free speech or fighting words? Kelly Jo Hock, whose driver's license was suspended, was observed by an Ohio policeman driving into her apartment parking lot. Hock refused to produce her license and complained to the officer that she was the victim of frequent police harassment. She said, “Fuck you, asshole,” in a normal tone of voice as she walked away. She was arrested for disorderly conduct.
  • 21. Free speech! Commonwealth of Pennsylvania v. Hock, 1998 Pennsylvania Supreme Court held that a “single profane remark” did not constitute fighting words. The court ruled that a jury could not reasonably determine that Hock's single remark “risked an immediate breach of the peace.”
  • 22. Free speech or fighting words? In Hamilton, Ohio, a citizen named Johnson was convicted of violating a city ordinance that made it unlawful to "verbally abuse or make derogatory remarks" to a police officer.
  • 23. Fighting words! City of Hamilton v. Johnson, 1999 An Ohio appeals court said the City of Hamilton's ordinance against verbally abusing police officers was constitutional. The reason: The ordinance could be interpreted to apply only to fighting words, not to other constitutionally protected words.
  • 24. Incitement to lawless action
  • 25. Free speech or incitement? Fact: Ku Klux Klan leader Clarence Brandenburg (in robe) invited a TV crew to a Klan rally in 1964.  Fact: At the rally, Brandenburg and others urged revenge against African Americans, Jews and those who supported them.  Fact: Brandenburg was convicted under an Ohio statute that made it illegal to advocate violence. 
  • 26. Advocacy of violence What Brandenburg said in front of TV cameras: “We’re not a revengent organization, but if our president, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it’s possible that there might have to be some revengeance [sic] taken.” While Brandenburg was not evidently armed, other Klansmen at the rally were.
  • 27. State can't restrict advocacy Brandenburg v. Ohio, 1969   The Supreme Court ruled that: "Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
  • 28. The Brandenburg test The Supreme Court decision created the "imminent lawless action" test: 1.Intent: Is the speech intended to incite imminent lawless action? 2.Likelihood: Is such lawless action likely?
  • 29. True threats
  • 30. Free speech or true threats? Watts v. United States, 1969 At an anti-Vietnam War protest in Washington, D.C., Robert Watts, 18, says: “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.” An undercover Army counterintelligence officer overhears him. Watts is convicted for threatening the life of the president (Lyndon B. Johnson).
  • 31. Political speech is not a true threat Watts v. United States, 1969 Supreme Court ruled that Watts' statements were “a kind of very crude offensive method of stating a political opposition to the President.” The court said the law engenders “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”
  • 32. So what is a true threat?    Fact: Barry Black, left, and two other men were arrested in separate incidents for burning crosses. Fact: The men were convicted under a Virginia law that made it a felony to burn a cross with the intent of intimidating any person or group of persons. Fact: The law said the mere fact of burning a cross was evidence of intent to intimidate.
  • 33. True threats defined Black v. Virginia, 2003 Justice Sandra Day O'Connor defined "true threats" as statements in which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.
  • 34. True threats defined Furthermore, the speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protects individuals from the fear of violence, in addition to protecting people from the possibility that the threatened violence will occur. Intimidation is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
  • 35. Confusion over true threats Must a speaker intend to intimidate or threaten others in order for the speech to be considered a true threat? Is it enough if the recipient reasonably believes the speech is a threat?
  • 36. A true threat?