Free Speech is for all ideas, not all words

Author’s note: It is an uncomfortable exercise for this author to discuss obscene speech on paper. Nevertheless, because of the importance of the topic, it is attempted here in the most decorous way possible.

Walter Chaplinsky was a Jehovah’s Witness street preacher holding forth in downtown Rochester, New Hampshire. His message for the day was a general screed against organized religion. As the streets were blocked and the turmoil grew, authorities arrived to restore order. At this point, Chaplinsky turned his ire to the town marshal saying, “You are a G-d d-mned racketeer,” and “a d-mned fascist.”

Chapter 378, paragraph 2 of the New Hampshire Public Laws made it illegal for anyone to address “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.” Chaplinsky was arrested and cited for breaking this law. He contested New Hampshire’s public obscenity law claiming that it violated the First Amendment.

Eventually, his case worked its way to the U.S. Supreme Court. Justice Frank Murphy wrote the majority opinion against Chaplinsky. The Court held 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. 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. 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.”

This landmark decision established the “fighting words doctrine” on March 9, 1942. It is one thing to express an idea. It is quite another to do so using words which are not intended to serve “as a step to truth,” but “to inflict injury or to incite an immediate breach of the peace.” The First Amendment protects the expression of all ideas. It does not protect the public utterance of all words.

Notice that public obscenity laws harmoniously existed with the First Amendment for more than 150 years before the Supreme Court even thought it necessary to formulate a doctrine to explain why this is so. This is common sense. It does not require a linguistic scholar to know the difference between “the lewd and obscene, the profane, the libelous, and the insulting [words]” on the one hand, and words that convey thoughtful content on the other. The least-educated dolt knows the distinction as well as the university professor.

“Fighting words” attack the person without addressing the argument in the slightest. We learn this in the schoolyard from the earliest days. When the bully is called out for cutting in line, he is not likely to offer a reason why it was justified. He is more likely to say, “shut up, stupid.” Whether you are stupid or not, it remains wrong to cut in front of you. His response makes no sense.

This is so obvious that we rarely take the time to point out the irrationality of fighting words. It was so obvious to the Supreme Court that the prohibition and punishment of fighting words had “never been thought to raise any constitutional problem.” Their landmark decision stood until America lost its common sense.

On April 26, 1968, Paul Cohen was arrested in a corridor of the Los Angeles Courthouse for wearing a jacket that said, “F--- the Draft.” Like Chaplinsky, he contested California’s offensive conduct law on First Amendment grounds. Cohen was convicted according to California Penal Code. This conviction was upheld on appeal and denied review by the California Supreme Court.

The Warren Court

The case went to U.S. Supreme Court. On February 22, 1971 Chief Justice Warren Burger instructed Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in an act of calculated defiance, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F--- the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. Justice John Harlan famously wrote for the majority, "...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."

This ruling unleashed a flood of obscenities and verbal injuries on the innocent public. It was not that Americans lost their common sense and decided that they wanted lewd, obscene, profane, libelous, and insulting words to become part of the public discourse. It happened, rather, because five men in black robes lost their common sense.

Have you ever wondered how American culture has gotten to the point that total strangers are permitted legally to scream vile obscenities to your face while policemen in riot gear stand by passively? This was brought to you by the same court that gave you Roe v. Wade. Nor was it always the case.

BLM mob accosts a diner in Washington, D.C.

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977 Cohen was cited as a reason to permit Nazis to carry their flag through a community of holocaust survivors while screaming insults. In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F--- you,” in the halls of education.

Today, in the cruelest irony of all, “hate speech laws” have completely turned the table. Now there are certain ideas that cannot be expressed without public penalty. Florists, bakers, clerks and printers have been devastated by lost business, government fines and legal costs just for expressing the idea that male and female are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets. In 1942 Justice Murphy articulated, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. But the First Amendment does not protect the utterance of every possible obscenity because it does not elucidate the truth.

Now, only 80 years later, the case is reversed. Nonsensical, vile and intentionally injurious words are fully protected speech while the expression of certain ideas—even in the kindest possible terms—is strictly forbidden.

SCOTUS’ 1971 scuttling of obscenity laws was supposed to protect free speech. Instead, it has crushed the speech that matters most: the articulation and testing of the truth.

Also published in the Wyoming Tribune Eagle, 1/22/21.

...and the Cowboy State Daily, 1/20/21.