Fighting Words: Individuals, Communities and Liberties of Speech.

• Author: Rosman, Michael E.

By Kent Greenawalt.(1) Princeton, N.J.: Princeton University Press. 1995. Pp. 189. Hardcover, $29.95.

Michael E. Rosman(2)

In Fighting Words: Individuals, Communities, and Liberties Of Speech, Kent Greenawalt surveys a number of different free speech issues all of which revolve around a common question: What happens when a person's expression, through words or deeds, significantly disturbs another person or persons? The traditional civil libertarian answer to this question (with few exceptions) has been simple: Tough luck to those who are disturbed. But the traditional civil libertarian response has come under increasing attack in recent years both by those who perceive free speech as a means by which the dominant classes in society can continue to subjugate the rest, forestalling true equality, and by those who believe that dissident or iconoclastic expression should not undermine our traditional societal values.

It is to Mr. Greenawalt's credit that he sees the connection between hate speech and flag burning, workplace harassment and nude dancing, obscenity and campus speech codes.(3) He covers all of these areas well, although lawyers have a tendency to overestimate the accessibility of writing on legal issues, I think the discussions can be followed by the average layperson, but will not bore the First Amendment specialist. (I fall somewhere in between.) Mr. Greenawalt also provides a comparison to Canadian rulings on similar First Amendment issues,(4) and tries to develop a theme (which I discuss briefly in Part III of this review) in the beginning and at the end of the book that emphasizes consideration of "communities" in First Amendment jurisprudence.

Mr. Greenawalt is a professor of law at Columbia Law School. Even if the jacket (which provides that information) of my copy of the book had somehow been misplaced, it would not have been a difficult thing to guess. His analysis is thorough, well-reasoned, and moderate. He sees many sides to the questions. He is concerned that the Supreme Court did not pay sufficient attention to interests being served by the Congressional flag burning statute, struck down in United States v. Eichman,(5) interests that differed from those served by the Texas flag-burning statute struck down in Texas v. Johnson.(6) (He thinks Eichman was correctly decided, mind you. It's just that the Court could have been more sensitive in its analysis.) He gives full consideration to each varying effort to defend hate speech laws, even some that probably do not merit such attention. His analysis of workplace harassment is so evenhanded, and so thorough in discussing the pro's and con's of each separate argument, that I am still not sure what his position is even after reading it several times. Finally, as I discuss shortly, his analysis frequently reflects the values of the class of which Columbia Law School professors are a part.

In Part I of this review, I consider Professor Greenawalt's analysis of hate speech and workplace harassment rules. In Part II, I look specifically at Professor Greenawalt's analysis of campus speech codes, and more generally at his efforts to consider more closely the role that government is playing in each different free speech context, an idea that I liked and wished he had developed more fully. Finally, in Part III, I briefly examine his analysis of the "individuals" and "communities" that are included in the subtitle of his book and conclude--as I think Professor Greenawalt does himself--that they are, at best, of only modest use in considering free speech issues.

I

In discussing what is loosely characterized as "hate speech"--he pernicious and derogatory use of bigoted epithets or symbols--Professor Greenawalt begins, as he should, with "fighting words."(7) Greenawalt wants to expand the definition of "fighting words" so as to include words which are designed to humiliate and which would be an invitation to fight to the "average" person. Thus, even if racial taunts are slung towards small African-American children by large white adults, Greenawalt considers them "fighting words" through an "equalization of victim" principle.(8) Greenawalt's admitted purpose is to separate the "fighting words" doctrine from its roots as a First Amendment exception designed only to avoid actual violence, and to broaden it to include words that are intended to, and which generally do, inflict deep psychological hurt.

The "equalization of victim" principle sounds interesting, although, as Greenawalt concedes, it is inconsistent with the Supreme Court decision in Gooding v. Wilson,(9) and stretches the rationale for prohibiting this type of speech to the point where placing it under the "fighting words" rubric is a bit misleading. Greenawalt also recognizes two more serious problems. First, the use of "hate speech" carries some expressive value with it, even if the "messages" are ones of racial or ethnic inferiority that most of us would find distasteful. Second, an "intent to humiliate" will frequently be difficult to discern, particularly if it must be the sole motivation for the speech.(10) Greenawalt suggests that we limit a civil prohibition to "targeted vilification," where the speaker has sought out the victim and initiated contact for the purpose of humiliation and insult, much like laws prohibiting harassing telephone calls.(11)

Of course, there is the little matter of R.A.V. v. City of St. Paul,(12) in which the Supreme Court unanimously held that a similar law did not pass Constitutional muster. A five-person majority held that, even assuming that the municipal ordinance in that case precluding the use of "hate speech" involved only "fighting words," it created improper distinctions between "fighting words" which discriminated on the basis of viewpoint (permitting minorities to yell "fascist" and "Nazi" at their enemies, but not allowing those yelled at to respond in kind) and content (not reaching other fighting words because they are not insults based on race, ethnicity, or another forbidden characteristic).(13) A four-person minority found the statute unconstitutional simply because it reached beyond the "fighting words" category to protected speech. As the foregoing discussion should make plain, however, Greenawalt simply disagrees with both groups of justices; with the minority because they do not have a sufficiently expansive notion of "fighting words," and with the majority for using "strict scrutiny" to assess a statute which reached words with little expressive value. The intent to vilify or "humiliate" a private citizen, according to Greenawalt, is sufficient to take speech outside of the carapace of the First Amendment.(14)

There is, of course, a rather obvious irony in a law professor suggesting that words spoken with an intent to humiliate are entitled to little or no Constitutional protection. Perhaps we should consider laws which focus on excesses in the use of Socratic dialogue and "targeted humiliation" within law schools. No doubt Greenawalt would state that such speech is different; it has a didactic purpose and, consequently, a public importance. I would agree. But that only reflects who Greenawalt and I (and, presumably, most of the readers of this review) are: people who would never use the kind of epithets that were the subject of the statute in St. Paul and who would be the target of a Greenawalt hypothetical statute, people who simply do not believe in the underlying messages that such epithets convey. On the other hand, people who would use such epithets--to, for example, "browbeat" minorities back towards their "proper" place of subservience in our country--might wonder why it is necessary to publicly humiliate law students in front of their classmates.

In short, our understanding of what is "valuable" speech (even with an intent to humiliate) tends to reflect our own backgrounds and values. And that is precisely the opposite of what a value-neutral First Amendment requires, and precisely why we employ categorical rules when analyzing regulations of speech. I do not mean to suggest that Professor Greenawalt is ultimately wrong with respect to his targeted vilification proposal; only that we must be very careful about adopting arguments that certain kinds of expression are less valuable than others.

Professor...