Thursday, February 18, 2010

Culture of Discussion: Limits?

Seal of the United States Supreme Court
(Image from Wikipedia)

I'm no legal scholar, but speaking as a layman, my view is that laws are laid down with the intention of forming a coherent system of rules to mediate relations among people in a society. For a legal system to work coherently, compromises have to be made, and even the First Amendment to the American Constitution has been subject to compromises. Here's the text of the First Amendment:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Immediately, one confronts the question of interpretation. What does this mean? Especially the part relevant to a "culture of discussion"? "Congress shall make no law . . . abridging the freedom of speech." That seems pretty clear. No legally enforceable limits on free speech.

But there have been compromises, and therefore limits.

In Charles T. Schenck v. United States (1919), the First Amendment was held not to protect speech that constituted "a clear and present danger":
The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
Justice Oliver Wendell Holmes, Jr. wrote these words as part of the Court's unanimous opinion, and he is also the author of the famous remark that the First Amendment does not protect an individual "falsely shouting fire in a crowded theater." This seems reasonable, and one can think of other reasonable cases. The First Amendment wouldn't protect someone ordering a murder, for example. The test of "a clear and present danger," however, has been differently applied over the years. Schenck was convicted for speaking against the draft during World War I. The US Supreme Court upheld that conviction, but it probably wouldn't do so today . . . if there were a draft.

Another compromise on free speech is embodied in a cousin to the "clear and present danger" doctrine, namely, the "fighting-words" doctrine, first articulated in Chaplinsky v. State of New Hampshire (1942):
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.
Again, the Supreme Court's decision was unanimous -- something about wartime seems to encourage restrictions on speech -- and the opinion was drafted by Justice Frank Murphy. This ruling is somewhat at odds with an opinion that I set forth about a "right to insult" in yesterday's blog post, but it's perhaps also somehow at odds with subsequent views of the Supreme Court, for the Freedom Forum -- a foundation dedicated to promotion of First Amendment rights -- reminds us:
Tellingly, despite continued reaffirmation of the fighting-words doctrine, the Supreme Court has declined to uphold any convictions for fighting words since Chaplinsky.
To this remark, the Freedom Forum expounds further:
In fact, in Terminiello v. Chicago, 337 U.S. 1 (1949), the Court immediately began a long process of narrowing and reshaping the broad scope of the original fighting-words doctrine. Terminiello was charged with breaching the peace after publicly insulting a group of adversaries. While not addressing whether Terminiello's speech constituted fighting words, the Court found that the breach of the peace statute in question was overbroad because it permitted convictions for both fighting words and constitutionally protected expression. Concluding that speech that merely causes anger or outrage does not amount to fighting words, the Court opined that speech is protected unless the expression is "likely to produce a clear and present danger of a serious intolerable evil that rises above mere inconvenience or annoyance." The Court explicitly stated that it would not assume that certain words inevitably provoke violent reactions by individuals. Rather, the Court's analysis focuses on the context in which the words were uttered, not merely the content of the words themselves.
Note the Supreme Court's explicit citation of the "clear and present danger" doctrine. Subsequent rulings of the Court have consitently narrowed the "fighting-words" doctrine, focusing on context rather than content, as can be further read about on the Freedom Forum's summary concerning fighting words.

I take this trajectory to imply that a particular insult would be protected speech in one context but not in another context. Posting the Muhammad cartoons on the internet, such as this instance on Wikipedia, would undoubtedly be protected speech, but carrying posters exhibiting the same images while picketing a busy mosque on a Friday during midday prayers might not be protected if this were judged "a clear and present danger" to public peace. Such a case remains to be tested, but I can imagine that it might well be tested in the not too distant future.

At any rate, I'd like to see this "fighting-words" doctrine narrowed as much as possible, for the doctrine seems to justify a violent reaction to the expression of opinion, and such a justification gives potential power to the 'insulted' to up the ante by increasing the violence expressed in response to a putative 'insult' until any context at all would be make the "fighting words" impermissible.

That's a slippery-slope argument, I suppose, but slippage does occur in legal systems, and I'd prefer to have slippage in the direction of freer speech.

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