Hate speech, fighting words, and beyond - why American law is unique.

• Author: O'Neil, Robert M.

During the waning days of the turbulent presidential campaign of 2012, the issue of free speech was bound to emerge. President Barack Obama chose this moment to declare to the United Nations General Assembly his abiding commitment to the uniquely American value of unfettered expression. (1) In a diverse society, he reaffirmed, "efforts to restrict speech can become a tool to silence critics, or oppress minorities." (2) The catalyst for this declaration was the appearance of "a crude and disgusting video" (3) caricaturing the Prophet Muhammad which had triggered violent protests in more than twenty nations, mainly in the Middle East. (4) President Obama made clear both his disdain for the video and his unswerving faith in the singularly American insistence on free expression. (5)

Curiously (or some would say paradoxically) the Obama Administration only weeks earlier had actively supported passage of a resolution in the United Nations Human Rights Council to create an international standard restricting some anti-religious speech; the Egyptian ambassador to the United Nations had lauded this measure by recognizing that '"freedom of expression has been sometimes misused' to insult religion." (6) Secretary of State Hilary Clinton had added her view that speech or protest resulting in the destruction of religious sites was not, she noted, "fair game." (7) In a recent and expansive analysis of these contrasting events, constitutional scholar Jonathan Turley noted the paradox: "President Obama's U.N. address last month declaring America's support for free speech, while laudable, seemed confused--even at odds with his administration's own efforts." (8)

In fact, such asymmetries abound in the contrasting views of the United States and virtually all other western nations. Countries as geographically close and politically congenial as Canada view free expression in starkly different ways than do we in the United States. In mid-October of this year, Canadian officials barred from our mutual border Reverend Terry Jones, the notorious Koran-burning pastor who has been the target of venomous hatred but has not been charged with any crime in this country; Jones was interrogated at length by Canadian officials and eventually turned away, unable to attend a Toronto gathering at which he had been invited to speak weeks earlier. (9) In sharp contrast, President Obama, the Pope, and religious and military leaders have consistently implored Reverend Jones to abandon his Koran-burning, and his church's tax exempt status has been stripped for technical reasons, (10) But even under the rubric of "incitement," (11) criminal sanctions and even civil penalties have not been imposed. (12) And just as a timely reminder of how dramatically different is the U.S. approach to hateful speech, a federal district court in the same week ruled that the Metropolitan Washington Transit Authority could not constitutionally prevent or delay the posting of a controversial ad reading "IN ANY WAR BETWEEN THE CIVILIZED MAN AND THE SAVAGE, SUPPORT THE CIVILIZED MAN. SUPPORT ISRAEL. DEFEAT JIHAD." (13) District Judge Rosemary Collyer ruled that such a message could not be barred or excluded from the bus and subway poster spaces simply because it might upset (or even inflame) some Metro riders. (14)

Finally in this very recent overview, we might note the growing tension over restrictions imposed by U.S. internet providers upon expression in other parts of the world. Google, for example, is blocking access in two countries to a crude and inflammatory anti-Muslim video, but without removing the video from the YouTube website. (15) And a few weeks later, Twitter was reported to have blocked German Twitter users from accessing an account of the activities of a neo-Nazi group that is banned in Germany, since the use of Nazi symbols and slogans and insignia is widely banned and subject to severe criminal sanctions. (16) The following day, however, a French Jewish group reported that Twitter had removed the anti-Semitic postings and had reopened access even to German users. (17) Obviously, such developments reflect a work in progress and merit close scrutiny in coming months and years.

Quite simply, we in the United States approach hate speech very differently than do virtually all other western nations. We seldom pause to explain why we persistently hear a different drummer. We might now ask just how we came to this improbably unique position among democratic countries with which we share so many values. Even our neighbors as close as Canada, and even more clearly other developed western nations, have adopted a markedly different course, and periodically charge anti-Semites and other prophets of hate on matters of gender, race, nationality, and sexual orientation with civil or criminal liability. (18) Those in Western Europe who share virtually all our other beliefs, including the basic precepts of free expression, depart even more clearly from our abiding commitments and, for example, target neo-Nazi propaganda as we consistently look the other way and tolerate such spiteful material. (19) No easy or convenient explanation invites adherence on our part. Thus we need to revisit the century-old roots of this striking paradox.

A RETROSPECTIVE ON U.S. LAW OF HATEFUL AND OFFENSIVE SPEECH

We in the United States have not always been so tolerant. Indeed, as recently as World War II, the Supreme Court took a quite uncongenial view of such expression. (20) We begin this journey with the seemingly trivial case of Chaplinsky v. New Hampshire. It began on a busy Saturday afternoon in the town center of Rochester, New Hampshire. (21) A Jehovah's Witness named Chaplinsky had persistently unsettled spectators by loudly denouncing the tenets of more traditional faiths. (22) The local constabulary, without making an arrest, escorted the dissident to the police station. (23) Chaplinsky then turned on the officer and uttered the words that would soon become the basis for an immediate criminal charge and ultimately for a Supreme Court ruling. (24)

The precise words remain in doubt to this day, since only the two protagonists were present at the time. (25) The arresting officer insisted that he had been called, to his face, "a damned fascist" and "a God damned racketeer." (26) Chaplinsky maintained with equal force that he had politely but firmly "informed the officer, that '[y]ou, sir, are damned in the eyes of God' and [are] 'no better than a racketeer." (27) In the absence of any witnesses, the recorder's court found against the itinerant speaker. (28) Chaplinsky was convicted of violating a state law that made it a crime to "address any offensive, derisive, or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name." (29)

The state supreme court affirmed the conviction, finding that the statute was appropriately limited to "face-to-face words plainly likely to cause a breach [through] ... 'classical fighting words."' (30) Afterward, "[a] unanimous Supreme Court affirmed, including several Justices who had consistently supported free expression in the past." (31) It was "Justice Murphy [who] wrote for the Court, and Justices Black and Douglas joined without comment [in] a brief opinion that [clearly] allowed [the] states to punish the [expression] of mere words, albeit under unusual [circumstances]." (32) The key to the ruling was the view of the Court 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." (33)

So dismissive a view of expression that was both unquestionably offensive and provocative now seems not only archaic but also wholly illogical. That view was even more remarkable given the deeply religious context in which Chaplinsky expressed his disdain for the police--whichever version of "God damned" and "racketeer" he actually uttered. (34) But a unanimous Court--including its strongest free speech champions--was convinced that such words forfeited any claim to First Amendment protection when they were uttered face-to-face in a manner that was "likely to cause a breach of the peace," whether or not any disorder actually ensued. (35) The New Hampshire law was deemed "[a] statute punishing verbal acts" which, through interpretation, had been "limited to define and punish specific conduct lying within the domain of state power." (36) Such exegesis left the charged words devoid of any constitutional protection, even in the eyes of the Court's several otherwise sensitive members. (37)

Commentators have observed over the years that this ruling contained two elements. First, there was an assumption that utterance of epithets under such conditions inherently inflicts psychic injury on a person who is their immediate target. (38) Second, when such verbal hostility creates or threatens an imminent breach of the peace, government may intervene even though only words are involved and no actual violence ensues. (39) Justice Murphy's cryptic opinion left little guidance to those--police and judges--who would in the years that followed do their best to reconcile the inherent tension between the "damaging words" and "breach of the peace" premises which the judgment inartfully blended. (40)

Seventy years later, Chaplinsky remains a persistent source of constitutional confusion. (41) It might have been mercifully overruled long since, but that never happened. Indeed, the case has been persistently cited with sufficient deference to imply that uttering "fighting words" remains a recognized exception to First Amendment freedoms. (42) As recently as the seminal "hate speech" ruling in 1992, the majority simply assumed Chaplinsky's continuing vitality, stressing only in passing that those fighting words that were...