‘Fighting words’ case still making waves on 70th anniversary

Friday, March 9, 2012

Seventy years ago today — March 9, 1942 — the U.S. Supreme Court issued a historic First Amendment decision involving a New Hampshire man who cursed at a law enforcement officer. In Chaplinsky v. New Hampshire the Court created the “fighting words doctrine” — defining them as words that “by their utterance inflict injury or tend to incite an immediate breach of the peace.”

The Court’s decision ushered in a process of categorization in First Amendment jurisprudence, determining whether speech was protected or unprotected depending on whether it falls into an unprotected category of speech. In the process, the Court ruled against Walter Chaplinsky — probably unfairly.

What happened?
The controversy began one Saturday afternoon in April 1940, in Rochester, N.H., when Chaplinsky, a devout Jehovah’s Witness, was distributing religious literature. A group of people objected to Chaplinsky’s speech, particularly his calling other religions “a racket.” They complained to the city marshal, James Bowering, who had warned Chaplinsky the month before about his proselytizing and annoying listeners.

In his excellent book, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (University Press of Kansas, 2000), Shawn Francis Peters reports that Bowering was a former college and semi-pro football player who “towered over Chaplinsky.”

Bowering allegedly told the crowd that Chaplinsky was acting lawfully and should be left alone. After the marshal left, Chaplinsky said, a man punched him and then many others joined in the fracas. A local newspaper recapped the event with the headline: “Chaplinsky Beaten by Irate Mob.”

Police led Chaplinsky to the police station for his protection. When Chaplinsky saw Bowering, they exchanged words. Chaplinsky allegedly said: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” Chaplinsky claimed that Bowering cursed at him first when he asked Bowering to arrest the people who hit him. He admitted he cursed at Bowering, but said he did not take the name of the Deity.

After Chaplinsky cursed Bowering, he arrested him and charged him with breach of the peace under the following state law:

“No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”

A jury in superior court convicted Chaplinsky. During the trial, the judge prevented consideration of any evidence that Chaplinsky was treated harshly by the crowd or that police possibly neglected their duties. According to the trial judge, only provocation or the truth of the speech constituted a valid defense to the charge.

More court defeats
Chaplinsky appealed to the New Hampshire Supreme Court, where his attorney, Hayden Covington, who joined trial counsel for the appeal, focused on constitutional arguments. He contended that the statute violated Chaplinsky’s free-speech, free-press and freedom of religion rights. But the New Hampshire Supreme Court affirmed his conviction in its opinion on March 1, 1941. The state high court analyzed the case as a free-speech case.

“The right to speak freely, whether in a street or elsewhere, is of primary importance,” the state court wrote.  “But, the right may be limited in appropriate circumstances.”

Covington had argued that the New Hampshire law was too vague, as people would have to guess at what speech would be considered offensive or annoying. The New Hampshire high court disagreed: “The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight.”

The state high court examined Chaplinsky’s language: “If the time may ever come when the words ‘damned Fascist’ will cease to be generally regarded as ‘fighting words’ when applied face-to-face to an average American, this is not the time.”

The state high court concluded that the statute applied only to what it termed “classical fighting words” — words that are “equally likely to cause violence, and other disorderly words including profanity, obscenity and threats.”  The court later called Chaplinsky’s language “dangerous words.”

Chaplinsky appealed to the U.S. Supreme Court, which unanimously affirmed his conviction. Justice Frank Murphy — later called a “known champion of First Amendment freedoms” by Justice Harry Blackmun — wrote the Court’s opinion.  He adopted the New Hampshire high court’s description of the utterances as “fighting words.” In an oft-quoted passage, he wrote:

“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 utterance inflict injury or tend to incite an immediate breach of the peace.”

The U.S. Supreme Court deferred to the New Hampshire Supreme Court’s construction of the statute. “We are unable to say that the limited scope of the statute … contravenes the Constitutional right of free expression,” Murphy wrote.  “It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace.”

Murphy said the limiting construction meant the statute applied only to fighting words and presented no vagueness problems.

“The Court completely ignored (or at least misinterpreted) the context of Chaplinsky’s alleged violation of the law,” Judging Jehovah’s Witnesses author Peters told the First Amendment Center Online. “He clearly was the victim of mob violence and police abuse; he uttered his ‘fighting words’ after he was being dragged off to jail for the supposed crime of having been mobbed. So, for me, the case is meaningful because it shows how the courts can err when they ignore or gloss over fact patterns and focus instead on broader points of law.”

Walter Chaplinsky may not have been too surprised at losing before the U.S. Supreme Court. That’s because a year earlier, in March 1941, he and four other Jehovah’s Witnesses lost their cases before the Court in Cox v. New Hampshire. Willis Cox, John Konides, Arvid Moody, Oliva Paquette and Chaplinsky had been cited for parading without a permit in Manchester, N.H.

After the Court’s decision bearing his name, Chaplinsky was 0 for 2 in the nation’s highest court. That is somewhat ironic, because Jehovah’s Witnesses had prevailed in numerous First Amendment cases before the Supreme Court: The leafleting decision Lovell v. City of Griffith (1938), the free exercise of religion case Cantwell v. Connecticut (1940), and the flag-salute case West Virginia Board of Education v. Barnette (1943) are just a few of the more celebrated victories for the beleaguered religious group.

Another irony for Chaplinsky was that Justice Murphy, who wrote the Chaplinsky opinion, was known for his sensitivity to First Amendment freedoms. Murphy authored several other opinions that protected the First Amendment rights of Jehovah’s Witnesses.  But he ruled against Chaplinsky.

Impact on First Amendment law
Chaplinsky has had an enormous impact on First Amendment law.

“Remarkably, the decision has never been overruled,” said free-speech expert Robert O’Neil, who founded the Thomas Jefferson Center for the Protection of Free Expression.  “It is still very much alive and well.”

Later U.S. Supreme Court decisions seemingly curtailed the reach of Chaplinsky. For example, in Cohen v. California (1971), the Court ruled that an individual’s wearing of a jacket bearing the words “Fuck the Draft” in a California courthouse did not constitute fighting words, because Cohen did not direct the message at a particular person or group. “No individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult,” the Court said.

The Cohen ruling specified that “fighting words” generally applies only to direct, face-to-face personal insults. Even then, the Court has sometimes invalidated convictions for someone’s harsh language directed toward another, particularly if the charging statute or ordinance is too broad.

Many First Amendment scholars have criticized the Chaplinsky decision. Temple University law professor Burton Caine, in an incisive 2004 article in the Marquette Law Review, called it a “tragedy” for First Amendment law. He contended that “the fighting-words doctrine was ill-conceived, is in disarray, and poses a potent danger to speech that should command premier protection.”

Later courts cite the decision not only for the principle that the First Amendment doesn’t protect all categories of speech, but also directly for the principle that there still is a category of speech that constitutes “fighting words.” Many state courts routinely cite Chaplinsky in upholding disorderly conduct, breach-of-the-peace or harassment charges.

Caine said the decision remained a troubling aspect of First Amendment law because it is still used by many courts — particularly state — to uphold convictions for people who criticize the police.

“While the lower federal courts generally follow the Supreme Court’s (later) lead in not upholding convictions for fighting words, the state courts have not been as [reluctant] and have stretched the fighting words doctrine beyond all recognition, primarily to protect the police from criticism, with all of the inherent dangers that such an approach presents,” Caine wrote.

Even though Walter Chaplinsky lost before the U.S. Supreme Court, Peters said he gained a measure of victory in the way he lived his life in that he never lost his spirit.

“Walter stood out for me because his case marked one of the few times that the courts really failed to fathom the context of the Witness cases of the 1930s and 1940s,” Peters told the First Amendment Center.

“He was in court because he was the victim of religious persecution, not because local authorities had a genuine interest in regulating public behavior. Despite all of that, he proved to be a resilient person — losing in court did not seem to dampen his enthusiasm for witnessing. If anything, it served to further convince him of the righteousness of his religious calling.”

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