Free Speech and the Right to Offend: Old Wars, New Battles, Different Media

• Publication year: 2010

Free Speech and the Right to Offend: Old Wars, New Battles, Different Media

Clay Calvert and Robert D. Richards

Introduction

The United States Supreme Court wryly but sagaciously remarked thirty years ago that it is "often true that one man's vulgarity is another's lyric."[1] The gender bias of that aphorism aside, the quotation rings true now more than ever. First Amendment[2] battles over where to draw the line between freedom of expression and freedom from offense—be it vulgarity or indecency, racism or homophobia—flared up all over the United States in 2000 and 2001.

The sites of these battles stretched across traditional and new media, ranging from print newspaper advertisements[3] to broadcast radio programs[4] to online Web sites.[5] They also included non-mediated, person-to-person instances of allegedly offensive expression in the classroom[6] and on the sidewalk.[7]

Beyond the question of medium, the conflicts themselves covered a broad spectrum of subjects, wandering from prickly topics such as slavery reparations[8] and abortion rights[9] to sexism[10] and homosexuality.[11] The offensive speech issues even tapped into the raw emotions surrounding unadulterated images of death.[12] Offensive expression in all its forms—music lyrics,[13] photographic images,[14] political cartoons,[15] public art[16]—was everywhere, or so it seemed, as the new millennium began.

This Article surveys more than a half-dozen current cases and controversies that cropped up in 2000 and 2001. Regardless of the medium covering the speech or the underlying topic spurring the strife, each case involved someone or some entity attempting to prevent or regulate speech because its allegedly offensive nature purportedly causes harm. In turn, they all have in common First Amendment issues of line-drawing that attempts to balance interests in a society that is increasingly diverse, not only in color and ethnicity, but in beliefs about what speech should be off limits for public consumption and what speech should be privileged in an open marketplace of ideas.[17]

Part I of this Article sets forth basic principles regarding offensive speech articulated by the United States Supreme Court.[18] Part II examines and critiques the current state of offensive speech controversies that test the principles described in Part I.[19] Additionally, Part II addresses some of the remedies that parties have used to challenge offensive speech in these cases, from prime examples of the counter speech doctrine[20] to outright vandalism intended to silence the offending speech.[21] Along the way, Part II illustrates how these battles often involve the same topics and subjects that have long made Americans queasy about the scope of First Amendment protection. Finally, Part III attempts to synthesize the battles described in Part II and suggests that the same standards the United States Supreme Court applied in the past on these issues must remain in place today rather than bend to conform with what seems to be a thinning of the American skin.[22]

I. As Offensive as We Wanna Be?:[23] The Supreme Court's Rulings

Notwithstanding its otherwise absolutist language, the First Amendment to the United States Constitution does not protect all forms of expression.[24] For instance, obscene speech falls outside the ambit of First Amendment protection,[25] as does child pornography[26] and expression directed toward inciting or provoking imminent violent and unlawful conduct.[27] In addition, the First Amendment does not protect so-called "fighting words."[28] Fighting words, as defined by the United States Supreme Court in 1942, are "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."[29] That Court has narrowed the doctrine, however, to apply only to direct, face-to-face personal insults.[30]

Conspicuously absent from this brief list of categories of expression falling outside the ambit of First Amendment protection is offensive speech. The general rule is that speech may not be censored solely because some find it offensive. As the late Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."[31]

Thus, the Supreme Court has protected the ability of an individual to wear the offensive message "Fuck the Draft" on the back of his jacket in a Los Angeles courthouse.[32] In Cohen v. California, the Court wrote "it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."[33]

Following in the footsteps of Cohen's protection, a federal appellate court recently held that the First Amendment protects racist speech—speech offensive to minorities and, for that matter, to many Caucasians—conveyed anonymously via the telephone to a public official.[34] In United States v. Popa, the defendant called Eric Holder, then the United States Attorney for the District of Columbia, "a criminal, a negro" and "a whore, born by a negro whore."[35] The Court of Appeals for the District of Columbia held the First Amendment protected such offensive bile from prosecution under a federal law restricting telephonic harassment.[36]

In 1988, the United States Supreme Court issued its opinion in Hustler Magazine, Inc. v. Falwell,[37] which protected the magazine's right to ridicule, in a highly offensive manner, public figure Jerry Falwell.[38] The Court, without dissent,[39] turned back Reverend Falwell's claim for intentional infliction of emotional distress resulting from an ad parody published in Hustler in its November 1983 issue.[40] The parody suggested that Falwell, the founder of the Moral Majority and a nationally known minister, had engaged in "a drunken incestuous rendezvous with his mother in an outhouse."[41] The Court, reversing the decision of the United States Court of Appeals for the Fourth Circuit, held that public figures such as Falwell could not recover for intentional infliction of emotional distress based on publications such as the Hustler ad parody without also proving actual malice,[42] a standard applicable to public figures and public officials in defamation law.[43] In reaching this conclusion, the Court quoted an earlier opinion, FCC v. Pacifica Foundation,[44] for the proposition that the "fact that society may find speech offensive is not a sufficient reason for suppressing it."[45]

Anthony Lewis, the long-time columnist and Supreme Court reporter for The New York Times and Lecturer on Law at Harvard Law School from 1974 to 1989, described the case this way:

The decision in Hustler v. Falwell was important for freedom of speech generally. It showed that the Supreme Court, including judges considered conservative, had an expansive sense of the kind of speech about public matters that the Constitution requires American society tolerate – not just George Washington as an ass but Jerry Falwell with his mother in an outhouse.[46]

It should be clear from the above review that the First Amendment protects offensive speech, particularly when the target is either a public issue or a public figure and when the setting is not one involving a captive audience of children.[47] And while the Federal Communications Commission may regulate what might be considered a sub-category of offensive speech—indecent expression—in the broadcast medium,[48] even indecent speech in broadcasting is not without First Amendment protection as this Article discusses later.[49] The bottom line then, is the First Amendment safeguards offensive speech but not obscenity, child pornography, incitement to violence, and fighting words.

Rationales for this position are many: (1) line drawing between offensive and non-offensive speech is too difficult and too subjective to provide rational distinctions, and therefore we must put up with offensive speech;[50] (2) we strive to be viewed as, and to identify ourselves as, a tolerant society, which means, ironically, that we must tolerate what sometimes amounts to extremely offensive and intolerant expression;[51] (3) the injury of being offended is a temporary and intangible mental state that is not as serious or the same as physical harms or tangible injuries caused by something like a thrown punch;[52] and (4) it is not for the government to dictate rules of civility and social mores of speech interactions through laws that tell citizens what they can and cannot say.

With this background in mind, Part II of this Article analyzes numerous recent incidents involving a variety of forms of offensive speech. These incidents may test our current beliefs and jurisprudence regarding the protection of offensive expression, as well as what we consider to be the appropriate ways to respond to such speech. Once again, they raise concerns about privacy, political correctness, and government censorship that threaten to stymie the unenumerated First Amendment right to offend.

II. Surveying the Offensive Speech Landscape: A Wild Ride Through Non-Genteel Terrain

This Part surveys the current crop of cases and controversies that are unified by one overarching theme: they all pivot on speech that offends. The survey is organized by either the medium transmitting the speech in question or, in instances of face-to-face communication, the setting where the speech occurred.

A. The World Wide Web: A New Forum for Offensive Speech

The World Wide Web,[53] ("Web") dubbed by the United States Supreme Court only a few years ago in 1997 as a "new marketplace of ideas"[54] is, in fact, today a virtual and vibrant marketplace of offensive speech.[55] This Part highlights two current examples of this phenomenon.

First, it examines...