Vendetta – 3

Phillimore’s attempt to present herself as either a reliable or authoritative voice on the issue of online harassment is untenable, not least as she does an awful lot of online harassment herself.

She seems enamoured of the US Supreme Court decision Chaplinsky v New Hampshire 315 US 568 (1942), which adumbrates the doctrine that “fighting words” are not protected by the First Amendment.

Unhappily for Phillimore, none of the matters of which she has sought to complain comes anywhere near the definition of “fighting words”. And the Chaplinsky case has been finessed by a series of subsequent decisions, as any decent First Amendment lawyer can explain.

The Chaplinsky decision

Mr Chaplinsky was a Jehovah’s Witness who was distributing pamphlets on a pavement and calling organised religion “a racket”. The town marshal called on him to tone it down. A hostile crowd gathered, and he was arrested. He responded by calling the town marshal “a damn fascist and a racketeer”.

He was charged with a public order offence under New Hampshire’s Offensive Conduct law, which prohibits the use of  “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name”. Mr Chaplinsky argued that this law was vague. He was fined and appealed.

The Supreme Court decided that the First Amendment did not protect:

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. 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.

Time moves on. In 1964, by a majority of 5:4 the US Supreme Court overruled a decision which had found Tropic of Cancer – Henry Miller’s raunchy 1934 memoir of his life in Paris, which is littered with expletives – obscene: Grove Press v Gerstein 378 U.S. 577. Miller had called the book “a prolonged insult”.

Fuck the draft

Then in 1971, the Supreme Court took a benign view of a defendant who had attended court to answer a traffic violation charge, wearing a jacket emblazoned with the words, “Fuck the draft”: Cohen v California 403 US 15. This was at the time of the Vietnam War, to which Mr Cohen was opposed.

Mr Cohen considerately removed his jacket in the court corridor, whilst waiting for his case to be called on, and folded it over his arm. A police officer demanded that he be charged with a public order offence, but the presiding judge disagreed. Nevertheless, Mr Cohen was charged with disturbing the peace by “offensive conduct”. He was sentenced to 30 days’ imprisonment.

On appeal, the court of appeals found that it was “certainly reasonably foreseeable” that his conduct in wearing his jacket could cause a violent reaction, even though there was no evidence that anyone had reacted violently to the jacket’s slogan. The Californian Supreme Court declined to review that decision, so on Mr Cohen’s appeal rolled to the Supreme Court of the United States.

Harlan J., who had been in the dissenting minority in the Tropic of Cancer ruling, seemed to have mellowed. He gave the lead judgment allowing the appeal, again by a majority of 5:4. He began:

This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

He went on to explain that this is a classic speech issue, not a conduct issue:

The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey his message to the public. The only “conduct” which the State sought to punish is the fact of communication. Thus, we deal here with a conviction resting solely upon “speech”…..Further, the State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. 

Further, there was nothing in the public order legislation to warn people that such communication would receive stricter scrutiny depending on location, such as a court house.

Whither Chaplinsky?

As for permissible limitations on speech, Harlan J. said that none of the recognised exceptions applied:

This is not, for example, an obscenity case. Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. 

Nor did the jacket’s logo amount to:

“fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. 

Indeed, the logo was not directed at any particular person:

No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.

This was not a case where a person had deliberately set out to provoke a hostile reaction in a given group.

“the special plight of the captive auditor”

So what about protecting the sensibilities of sundry passers-by? Harlan J gave this short shrift:

much has been made of the claim that Cohen’s distasteful mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable exposure to appellant’s crude form of protest. ….

The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is, in other words, dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.

In this regard, persons confronted with Cohen’s jacket were in a quite different posture than, say, those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable privacy interest when walking through a courthouse corridor than, for example, strolling through Central Park, surely it is nothing like the interest in being free from unwanted expression in the confines of one’s own home. 

“one particular scurrilous epithet”

He went on:

Against this background, the issue flushed by this case stands out in bold relief. It is whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.

It was no answer for the state to argue that some hypothetical lawless person might have reacted violently, if unreasonably:

There may be some persons about with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that, to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.

Why free speech must be defended

Harlan J. then gave a rousing defence of the rationale for freedom of speech:

The constitutional right of free expression is powerful medicine in a society as diverse and populous a ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests. 

He rejected the idea that, because freedom of speech can create “verbal cacophony”, that is a reason for limiting it to what might be considered bearable. On the contrary:

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. 

“one man’s vulgarity is another’s lyric”

First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said,

[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism, but the freedom to speak foolishly and without moderation. Baumgartner v. United States, 322 US 665, 673-674 (1944).

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed. [emphasis in bold added]

What Harlan J is saying is very important. Words express both emotion and ideas. As Yeats put it, “How can we know the dancer from the dance?”. Thus, foolish or immoderate speech is as worthy of protection as the utterances of Keats and Donne.

Phillimore is vehemently opposed to this approach, it will not surprise you to hear. But since this has been a long post, I am going to let you go now, while I sharpen my quill for Part 4.