Uncontroversial restriction on freedom of expression

A second relatively uncontroversial restriction on freedom of expression involves so-called “fighting words”. In the United States, the fighting words doctrine as a legal doctrine arises from the 1942 Supreme Court ruling in Chaplinsky v. New Hampshire. Walter Chaplinsky, one of several Jehovah’s Witnesses who had gathered in a New Hampshire town to proselytize on behalf of their religion, became involved in a confrontation with local authorities. In the heated discussion that followed, Chaplinsky called a police officer “a God-damned racketeer” and “a damned Fascist.” He was arrested, charged, and convicted under a state law that made it a crime to “address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place” or t o “call him by any offensive or derisive name.”The Supreme Court unanimously upheld Chaplinsky’s conviction. Justice Frank Murphy, writing for the Court, noted that “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,” and among these, he included “the insulting or ‘fighting’ words.” He then went on to distinguish between two kinds of fighting words: those that “by their very utterance inflict injury,” and those that “tend to incite an immediate breach of the peace.” I want to set aside the first kind of case for discussion in a later section, and will focus here on the second. So for purposes of this section, ” fighting words” refers to the kind of expression that has the tendency to “incite an immediate breach of the peace.” Understood as a legal matter, the “fighting words” doctrine is the claim that restrictions on speech that has this kind of tendency are Constitutional. But for the purposes of this section, I want to focus on the moral question rather than the Constitutional question. So for the purposes of this section, the fighting words doctrine will be understood as the claim that such restrictions are morally unobjectionable, and the “fighting words”- based argument for hate speech restrictions will refer to the argument that is grounded in two claims: that it is morally unobjectionable to restrict speech of this sort and that hate speech restrictions can be shown to be morally unobjectionable by appealing to this fact.I have serious reservations about the first of these two claims. One problem with saying that it’s morally unobjectionable to restrict fighting words understood in this way is that such restrictions seem to permit people to render otherwise protected expression forbidden simply by making themselves available to be incited by it. Suppose, for example, that a group of racists is planning to hold a picnic on a small, rarely used lawn in a large city park or a large university campus, and that they intend to say horrible things about black people while they are there. If no one else shows up at the lawn during their picnic, then their racist words won’t tend to incite an immediate breach of the peace because no one present will be offended by them. But if a sufficiently large number of people who are strongly opposed to racism make a point of gathering on the lawn at just that time, then the uttering of the very same words will have such a tendency, and so will no longer count as protected speech according to the fighting words exception. Those who would be incited by the racists’ expression if they were present, in other words, can effectively censor the racists by making themselves present, a troubling implication that has sometimes been referred to as the “heckler’s veto.”It seems morally problematic to give people the right to engage in such selective censorship: imagine being forced to cancel your egalitarian picnic because a bunch of racists made a point of showing up just so that they could be incited to violence by your proclaiming the virtues of racial equality. And this provides one reason to be skeptical of the claim that it’s morally unobjectionable to restrict fighting words.A second worry about the moral claim that I’m referring to here as the fighting words doctrine concerns its implications for attributions of personal responsibility. As Law Professor Randall Kennedy has put this concern: “Rather than insisting that the target of thespeech control himself, the doctrine tells the offensive speaker to shut up. This is odd and objectionable.”This worry, moreover, seems especially acute when the fighting words doctrine is applied to the case of race- based hate speech in particular. In the 1997 case of In Re: Jerry L. Spivey, for example, the North Carolina Supreme Court explicitly appealed to theChaplinskyruling in grounding its decision in the legal version of the fighting words doctrine. And in applying the legal doctrine to a case in which a man had repeatedly referred to a black man in a bar as a “nigger,” it wrote that “No fact is more generally known than that a white man who calls a black man a ‘nigger’ within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate.”But by treatingthe word “nigger” as having this almost hypnotic power, the fighting words doctrine in both its legal and its moral formulation seems to deprive the black man in question of theresponsibility to respond peacefully, and to reinforce worrisome stereotypes about black menbeing innately prone to violence.Finally, and perhaps most important, the claim that it’s morally unobjectionable to prohibit speech when it has a tendency to “incite an immediate breach of the peace” has implications thaton reflection, I suspect, most people on both sides of the hate speech debate would find unacceptable. Consider, for example, anti-abortion protesters who rally outside an abortion clinic and yell “baby killer” at the women and doctors who enter. Given the extremely heated nature of the abortion debate in this country and the emotional situation that most women with unwanted pregnancies already find themselves in, it’s hard to deny that screaming such words in such a context would have a tendency to incite an immediate breach of the peace. But while people may disagree about the propriety and details of laws that limit how far back from the clinic the protesters must stand, virtually everyone on both sides of the hate speech debate would morally object to legal or university restrictions t hat forbid the protestors from using such words even if they were standing behind the designated line. And the same would presumably be true of many other forms of protest that might well incite disturbances. Tempers often flare when pro- and antiwar demonstrators meet, for example, but it’s hard to believe that many people would accept as morally unobjectionable a ban on using such words as “murderer” or “traitor” in the context of such gatherings. And they would find such restrictions morally objectionable, moreover, regardless of whether the demonstrations took place in a public park or on a college campus. A city or college might have a legitimate reason to deny a permit to hold a particular demonstration on its property, but it’s hard to believe that many people would find it morally unobjectionable for the city or college to grant the permit but prohibit the protestors from uttering these particularwords. A defender of hate speech restrictions, of course, might claim that there’s an important difference between calling a black man a “nigger” on the one hand, and calling a woman getting an abortion a “baby killer” or a returning soldier a “murderer” on the other. The latter two cases, it might be argued, amount to the expression of social or political opinions while the former merely amounts to name calling. And so, it might be claimed, banning the use of the word ” nigger” on grounds that using it involves the use of fighting words wouldn’t have to entail banning the use of such terms as “baby killer” and “murderer” in the context of protests about abortion and war.There are two problems with this response to my third concern about the fighting words doctrine. The first problem is that the point of the doctrine was supposed to be to explain how speech that should otherwise be protected can come to be unprotected in virtue of the fact that it constitutes an immediate threat to public order. If being likely to incite an imminent breach of the peace is something that can make otherwise protected speech unprotected, then it shouldn’tmatter that expressions like “baby killer,” “murderer” and “traitor” are otherwise protected speech in virtue of the fact that they involve the expression of social or political opinions. If the doctrine of fighting words justifies banning otherwise protected words because of their tendency to incite an imminent breach of the peace, then it will justify banning these words at these protests regardless of why they would otherwise have been protected. The unprotected words “give me your money or I’ll shoot you in the head” don’t become protected when they are changed to “give me your money so that I can donate it to the poor or I’ll shoot you in the head because I believe that wealthy capitalists like you don’t have a right to so much money while other people are starving.” And if threatening words don’t become protected when they express social and political views, there’s no reason to think that fighting words should either.But second, and more fundamentally, it strikes me as disingenuous to allow that terms like “baby killer,” “murderer,” and “traitor” involve the expression of social or political opinions while denying that the same is true of the term “nigger.” Calling a black person a nigger is so offensive and hurtful in the first place precisely because it involves expressing the view that black people are inferior, contemptible, and unworthy in virtue of their being black. And so if the fighting words doctrine is said not to apply in the case of words like “baby killer,” “murderer” and “traitor” on the grounds that these terms express social or political opinions, then it shouldn’t be applied to the case of the word “nigger” and other instances of race-based hate speech for the same reason. Either way, then, the doctrine can’t justify a ban on race-based hate speech that’s likely to incite others without at the same time justifying a ban on provocative political speech that’s as likely to provoke the same sort of consequences. Since most people, regardless of their view of restricting race-based hate speech, will think it morally objectionable to restrict these forms of provocative political speech, this provides a third reason to be wary of the fighting words doctrine. I’ve been arguing against the fighting words justification for hate speech restrictions so far by arguing against the fighting words doctrine itself. But let’s now suppose that the doctrine is perfectly acceptable and that it really is morally unobjectionable for a government or school to forbid the use of words in contexts in which they would tend to incite an immediate breach of the peace. Even if this is so, the attempt to justify hate speech restrictions by appealing to this doctrine is still unsuccessful, and for the same basic reasons that turned out to undermine the threat-based argument for such restrictions. First, even if it’s reasonable to construe the use of the word “nigger” as fighting words in some contexts, it’s unreasonable to insist on doing so in all contexts. Even if calling a young, physically powerful black man a nigger is too likely to prompt a violent retaliation, for example, there’s no reason to think that aiming the epithet at a frail, old black woman would be. And the same would be true of many other sorts of cases in which we had particular reason to think that the person being insulted would be unlikely to respond with violence: known pacifists, members of the clergy, people who had been called the word many times before without responding violently, and so on. Kennedy suggests that this feature of the fighting words doctrine provides yet another reason to object to the doctrine itself. It strikes him as problematic that the doctrine “gives more leeway to insult a nun than a prizefighter since the nun is presumably less likely to retaliate.”I’m inclined to agree that this is a further problem with the doctrine. Certainly it’s hard to justify granting greater protection to powerful, young black men than to frail, old black women, and that’s what the fighting words doctrine seems to do. But regardless of whether this limitation on its scope is an additional defect of the doctrine itself, it’s clearly a reason to deny that the doctrine could be used to justify the claim that hate speech restrictions are morally unobjectionable. Since the doctrine only applies in particular contexts where the use of particular words generates a significant risk of an immediate breach of the peace, and since hate speech doesn’t always take place in this context, legal and academic restrictions that forbid hate speech can’t be grounded in the fighting words doctrine. A defender of hate speech restrictions might appeal to the claim that even hate speech that’s unlikely to incite an immediate breach of the peace may contribute to bringing about an environment in which other people will later be more likely to incite such a breach. But, as with the parallel response in the case of the threatening words argument, this response has implications that virtually everyone on both sides of the debate would surely reject. A student’s claiming that abortion is morally on a par with murder is unlikely to incite an immediate breach of the peace, but it, too, could contribute to bringing about an environment in which other people will later be more likely to incite such a breach.Finally, even if I’m wrong in claiming that many instances of hate speech can’t reasonably be construed as fighting words, the fighting words argument for hate speech restrictions must still be rejected. If it turns out that every single instance of hate speech is also an instance of fighting words, after all, then there’s no reason to adopt hate speech restrictions: hate speech will already be left unprotected in virtue of the fact that it’s a form of fighting words and so will already be indirectly restricted by laws and policies that restrict the utterance of fighting words. In the end, then, the appeal to the fighting words doctrine as a means of justifying hate speech restrictions is impaled on the horns of the samedilemma that undermined the threat-based argument for such restrictions: either the appeal is unconvincing or it’s unnecessary. Either way, it provides no justification for adopting legal or academic hate speech restrictions.