Provocation to Anger
- 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
- worthwhile speech (has social value as
step to truth)
- worthless speech (no value) includes:
- fighting words
- inflicts injury on listener (dropped later)
OR
- will incite immediate breach of peace
- lewd, obscene, profane
- slander and libel
- 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.
- 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)
- Cohen v California 1971 - He had "Fuck the Draft"
written on a jacket but provoked no one orally or otherwise.
p. 169
- 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.
- The Court said shocking language is not
inevitably obscene.
- To be criminal, words must be
- directed at an individual
- in a provoking way with clear and present
danger of immediate breach of peace -- drops Chaplinski "injury"
standard
- 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:
- threat of immediate violence
- offensiveness of language to hearers
- psychological hurt to individuals attacked
- 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
D. SCOTUS unanimously rejected criminalizing racist speech in R.A.V. v
St. Paul 1992 (cross burning - "symbol ...
arouses ... alarm ... on basis of race ...") but
OK'ed penalty enhancement for racially motivated
crimes in Wisconsin v Mitchell 1993 (The law causes little chilling effect
and is aimed at conduct). pp. 180 & 182
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. |