Provocation to Anger

1. Chaplinsky v New Hampshire (1942) Jehovah Witness (spoke offensively to a marshal) p. 167 This is the first case to divide speech into two categories - p. 164
   1. worthwhile speech (has social value as step to truth)
   2. worthless speech (no value) includes:
      1. fighting words
         1. inflicts injury on listener (dropped later) OR
         2.  will incite immediate breach of peace
      2. lewd, obscene, profane
      3. slander and libel
          
2. Terminello v Chicago 1949 - The anti-semitic priest goes free on basis of judges' instructions on disturbing the peace/disorderly conduct that Douglas deemed were overly broad (see Douglas opinion, p. 166) uses phrases such as speech that "invites dispute," and "stirs the public to anger," etc.
    
3. Feiner v NY 1951 - SCOTUS permitted heckler's veto by upholding the disorderly conduct conviction due to the message creating a clear and present danger - over Black & Douglas dissent (They argued, "Arrest the crowd." p. 167)
    
4. Cohen v California 1971 - He had "Fuck the Draft" written on a jacket but provoked no one orally or otherwise.  p. 169
   1. USSC indicated the Government can't provide rationale for prohibiting some words and not others, since this can restrict ideas. Emotional content is important too in the expression of ideas.
   2. The Court said shocking language is not inevitably obscene.
   3. To be criminal, words must be
      1. directed at an individual
      2. in a provoking way with clear and present danger of immediate breach of peace -- drops Chaplinski "injury" standard
   4. This finding is strengthened in Gooding v Wilson 1972 notice Brennan opinion, p. 170  (review the chart on p. 171.) and in Lewis v New Orleans 1972 in relation to incitement and the police.

Words that Wound -- Issues

A. Kent Greenawalt argues for limits , p. 173.  Harms such speech can cause:

1. threat of immediate violence
2. offensiveness of language to hearers
3. psychological hurt to individuals attacked
4. long-term reinforcement of stereotypes, negative attitudes, prejudice, etc

B. Greenawalt proposes torts (suits for injury) for "harms" p. 176-7 - individual or class action

C. Criminalize racist speech says Matsuda (p. 174) if --

• The message is of racial inferiority
• Directed toward a historically oppressed group
• And is persecutorial (sic), hateful and degrading

E. College Speech Codes -- Michigan (see page 177-78 for wording) and Wisconsin codes ruled unconstitutional as not meeting "direct confrontation" of "fighting words" requirement, plus vague and overbroad.