Cyberspace: a new frontier for fighting words.

• Author: Singh, Sanjiv N.

1. INTRODUCTION

   The boundaries that limit our freedom of expression change constantly. While First Amendment jurisprudence rests on a core of enduring doctrines, the contours of that core remain malleable. This is particularly true in the context of unprotected speech.(1) While fully protected speech, such as political expression, has enjoyed a nearly untouchable position beyond regulation,(2) lesser protected speech remains susceptible to social, political, and economic forces that can determine, at any given time, what speech is worth protecting and what speech is not worth protecting.

   For example, the definition of obscene expression has been modified over the last five decades to accommodate changes in social attitudes and variations in local preferences.(3) The Supreme Court has expanded or reduced the scope of regulation depending on the context in which it is applied and the increased risk of social harms that had not been considered when the doctrine was first created.(4)

   Consistent with this principle of adaptive jurisprudence, this Article examines the fighting words doctrine as applied to the cyber-era of communication. Like obscenity, fighting words constitute another class of traditionally unprotected speech.(5) They include those utterances or slogans that either directly injure the hearer through insult to the hearer's race, gender, or background (the "inflict injury" arm of the doctrine), or those words that are likely to provoke an immediate violent response by the hearer (the "imminence" arm of the doctrine).(6) The fighting words doctrine has evolved in the context of face-to-face interaction. The bulk of the jurisprudence took root several decades ago, prior to the inception of the technology revolution and the opening of cyberspace.(7) Consequently, no court has addressed how the fighting words doctrine would be applied in this new era of communication, where face-to-face interaction is not the norm.

   This Article explores the vitality of the fighting words doctrine in cyberspace. It challenges conventional free speech wisdom, which argues that not only is the fighting words doctrine largely defunct in the face-to-face context, but also that it has little or no validity in cyberspace. In brief, this Article concludes that the opening of cyberspace will not only leave the fighting words doctrine intact, but, even more significantly, might actually reinvigorate the doctrine by: (1) refocusing attention on the injurious potential of words by themselves, (2) demonstrating that physical proximity is not the only setting in which the likelihood of imminent violence can be established, and (3) redefining "breach of the peace" and what harms the doctrine seeks to prevent.

   This Article is divided into six parts. Part II explains how cyberspace has begun to transform our social, business, and educational environment. Part III discusses the general viability of the fighting words doctrine and establishes that the doctrine is not only valid but might in fact regain some of its original strength, given recent Supreme Court decisions. Part IV presents the conventional wisdom argument, which states that an already fragile fighting words doctrine is not applicable in cyberspace. Part V offers the first challenge to the conventional wisdom by demonstrating that not only is the inflict injury arm still viable, but that it might in fact gain additional strength in the cyberspace context. Part VI offers a second challenge to the conventional wisdom, dissecting the imminence arm of the doctrine and urging a reappraisal of both physical proximity and imminence in cyberspace. Finally, Part VII examines how new forms of cyber-warfare might expand our notions of the dangers sought to be prevented by the fighting words doctrine.

2. CYBERSPACE AND THE COMMUNICATION REVOLUTION

   The development of cyberspace has fundamentally changed the way in which society communicates. Indeed, by 1996, the Internet linked twenty-five to thirty million people in over 146 different countries, with the number of users increasing exponentially every month.(8) In the United States, there are currently an estimated forty to forty-five million adults who use the Internet, twenty-five million of whom use the Internet every week.(9) Not surprisingly, this cyberspace transformation is occurring across every segment of society, affecting a vast range of interpersonal communications and business transactions.

   1. Impact on business

      The development of the Internet(10) has transformed the market of goods and services. A wide range of financial transactions occur via e-mail and other Internet related webs of communication.(11) Consumers can purchase an array of items on the Internet, including books, music, food, flowers, and gift specialties. Internet research firms predict that Internet advertisement spending will rise to $1.6 billion by the end of 1998.(12) Not surprisingly, online buying continues to increase each year. With an estimated 42,300 new Net users everyday, and with sixty-nine percent of online purchasers pointing to convenience as the leading reason for online shopping, it is foreseeable that most business transactions will become cyber-dependent or cyber-oriented at some time in the near future.(13)

   2. Impact on social interactions

      More importantly, the Internet has begun to transform the way in which people interact. Various mediums now exist that allow for cheap and almost instantaneous communication via computer. For example, e-mail is now an increasingly common way to communicate with family, friends, and acquaintances. In fact, more than fifteen percent of the U.S. adult population use e-mail, and 12.8 million U.S. households have at least one adult who uses e-mail.(14) Technology research firms estimate that by the year 2001, fifty percent of the U.S. population will communicate via e-mail.(15) The 1997 Computer Industry Almanac predicts that by 2001 more than 450 million people worldwide will have e-mail access.(16)

      Considering the history behind the development of the Internet, it is not surprising that many colleges and graduate schools routinely provide students with, and in some cases require, use of e-mail accounts.(17) As a result, significant segments of our population are being socialized in an environment where cyberspace communication is an encouraged form of establishing and confirming social engagements or simply corresponding with friends.

   3. Impact on the workplace

      Even outside the academic setting, large segments of the population are being conditioned to new modes of communication. Many companies and government employers now rely on e-mail or inter-office networks to facilitate communication.(18) This kind of socialization is perhaps even more significant since it results in the exposure of a wider, more diverse segment of the population to methods of communication that were previously inaccessible. In fact, a recent demographic breakdown indicated that Internet usage in the United States is now more evenly distributed across various income brackets and occupations:

      U.S. Demographics Internet At A Glance?19) Category Usage (% of Total Users) Occupation Professional 24 Executive/Man/Admin. 20 Clerical/Sales/Technical 26 Precision/Crafts/Rep. 6 Household Income $150,000+ 7 $75,000 - $149,999 34 $50,000 - $74,999 28 Less than $50,000 32 D. Impact on the classroom

      Cyberspace has exerted perhaps its most powerful transforming effect in our elementary, junior high, and secondary school classrooms. In the case of college students or adult workers who are exposed to the Internet, it is arguable that only a partial "cybersocialization" exists. While college students and working adults have been recently exposed to the Internet, they still rely on more traditional forms of communication in their day-to-day existence.(20) However, the introduction of cyberspace into our elementary, junior high and secondary school classrooms will affect a much more profound and long term change in the way people communicate. Fifth graders who routinely log-on to the Internet, cruise web sites for information, and e-mail their friends in other schools--and in some cases other countries--are being socialized at a critical stage of their lives.(21) At an age when they develop their social and communication skills, these children are exposed to technology that, until now, has been only a novel and innovative part of most adult lives. These same children will view e-mail and the Internet as conventional media, as accessible as the television and the telephone. As these children become adults, it is certain that the transforming effect of cyberspace will become even more powerful than it is now.(22)

3. THE FIGHTING WORDS DOCTRINE

   Before the fighting words doctrine can be applied in cyberspace, it is important to evaluate the strength of the doctrine as it was first conceived in the context of face-to-face interactions. Note that while this section of the Article does not address cyberspace or its implications, the following discussion remains essential to dismantle the common misconception that the fighting words doctrine is irreversibly defunct.

   1. Chaplinksy v. New Hampshire: a basic two-part doctrine

      Chaplinsky distributed his sect's literature at a street corner in Rochester, New York.(23) As it was a busy Saturday afternoon, a small crowd had gathered to hear his speech.(24) Unfortunately, much of what he was saying caused the crowd to grow increasingly restless.(25) When confronted by a city marshal, Chaplinsky responded, "You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists."(26) For this statement, Chaplinsky was prosecuted under New Hampshire's fighting words statute. The Supreme Court upheld his conviction:

      Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not...