The authors in this volume rank among the leaders in the field of communication studies, and the cases they have chosen to analyze represent some of the most important free-speech controversies ever decided by the Court.

A different kind of book

The book is useful on a number of fronts. First, as the Introduction points out, communication specialists focus on the meaning the Court’s language will have for the audience, while the predominant focus of legal scholarship typically involves what the particular justice or justices – the messenger – meant by the chosen words. Second, these essays apply a variety of concepts from communications theory, including “magic bullet” to symbolism to “spiral of silence” to metaphor – all of which are artfully tucked into their proper perspective. Third, and perhaps most practical, the cases are succinctly analyzed in terms of their facts and rulings and often touch on the historical undertones at the time of decision.

A few examples help to illustrate what makes Free Speech on Trial a useful contribution to both the legal and communications literatures.

In an essay on Chaplinsky v. New Hampshire, the 1942 case that spells out the fighting words doctrine, Dale Herbeck argues that Justice Frank Murphy easily could have disposed of the case on the narrow basis that, under the clear and present danger test, the language “was likely to provoke physical retaliation.” Instead, Murphy opted to make a sweeping pronouncement “that has haunted First Amendment jurisprudence for more than fifty years.” Particularly troubling is the general lumping together of a two-part fighting words definition – “those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace” – with other speech of “slight social value,” like obscene and libelous speech. Framing speech as low value provided the Court with a convenient rhetorical device for lessening First Amendment protection.

Boston College Professor Dale Herbeck takes the reader through an analysis of the evolution of fighting words post-Chaplinsky to demonstrate that subsequent case law narrowed the fighting words doctrine to a point that it is questionable whether any part of the doctrine truly remains. Despite the erosion of the fighting words concept, the opinion did more than treat the narrow issue of Walter Chaplinsky’s untoward remarks. In fact, Justice Murphy’s dicta in Chaplinsky can be seen as creating a tiered approach to speech that gave way to “lively debate” about using social value as a rationale for restricting speech.

The essay concludes that, from a communications standpoint, classifying speech as low value is troublesome because all speech – or even the deliberate absence of speech – contains some value. Herbeck argues that Justice Murphy cleverly framed the debate about low-value speech in terms of what the government wished to exclude from First Amendment protection. In one sweep, he was able to exclude from protection “four troublesome” categories of unpopular speech. If Murphy had accepted the communications approach and recognized that this speech “is rich with meaning,” he clearly would have had a more difficult time tossing this protection aside.

Herbeck also argues that the Chaplinsky decision is based on the faulty notion that speech and action are causally linked.

Professor Herbeck’s essay follows the fighting words doctrine to the Supreme Court’s latest treatment – R.A.V. v. City of St. Paul (1992). Herbeck notes that the Court carefully recast the fighting words doctrine to avoid returning to the Chaplinsky dicta.

Sanitizing speech

On a related issue, Montana State University Professor Susan J. Balter-Reitz’s essay examines the ire drawn by Paul Robert Cohen when he wore his tart-tongued jacket to the Los Angeles County Courthouse in 1968. Convicted and sentenced to thirty days in jail for adorning his apparel with the message “Fuck the Draft,” Cohen appealed his convictions on free speech grounds through the California system to the United States Supreme Court, which ultimately agreed with him in its 1971 opinion.

Balter-Reitz writes that Cohen v. California (1971) “deserves to be among those nominated as the most significant free speech cases in the twentieth century.” Without question, Cohen is a significant case. In essence, it removes from government the right to sanitize speech and determine what discourse is appropriate for a civil society. Government should not be permitted to draw the parameters for the marketplace of ideas – particularly when the speech in question is critical of a government policy.

The Balter-Reitz essay looks at the captive audience and offensive speech arguments and ultimately lauds Justice John Harlan’s recognition that a communications approach is in order here. Harlan wrote that “words are often chosen as much for their emotive as cognitive force.” Had Cohen chosen other words, the meaning would have been different. As Balter-Reitz aptly notes, Harlan was able to transform into law the notion “that language choices should be made by those who use the language rather than by a judicial or legislative authority.”

The other essays in the books are equally thoughtful and cast a wide net over First Amendment jurisprudence – including reflections upon such cases as New York Times Co. v. Sullivan (1964), Brandenburg v. Ohio (1969), Miller v. California (1973), Hustler Magazine, Inc. v. Falwell (1988), and Reno v. ACLU (1997), among others. The book delivers on its promise of applying a theoretical perspective drawn from communications to breathe new ideas into the examination of cases and doctrines that countless times have been viewed through a legal scholarship lens.