4 ms·

What are you talking about? There are obvious and practical limits on 'free speech'. In fact, the Supreme Court has unanimously upheld a "fighting words" doctri

What are you talking about? There are obvious and practical limits on 'free speech'. In fact, the Supreme Court has unanimously upheld a "fighting words" doctrine ensuring that speech which is by its nature injurious or likely to cause breach of the peace is not protected. An excerpt from the 9-0 decision makes a pretty concise case, especially the latter part: "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 absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has 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. 'Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.' [Cantwell v. Connecticut]" https://web.archive.org/web/20080906001323/http://laws.findlaw.com/US/315/568.html https://web.archive.org/web/20080906001323/http://laws.findl... We can argue about definitions of 'obscene', 'likely to cause a breach of the peace', etc. But to treat freedom of speech like an unassailable, all-or-nothing fundamental assumption is not helpful.

icebraining 9y ago
Chaplinsky is quite outdated. It's not clear that the Fighting Words doctrine even still exists at all, but to the extent it does, it requires a physical presence inviting to an altercation by being directed at someone. Prohibitions based purely on content of speech are not constitutional. (IANAL and this is not legal advice, of course)
- adrianratnapala 9y ago
  Indeed, I only just read about Chaplinsky -- and it seems pretty grubby and authoritarian. Just letting cops arrest people for -issing them off. As the original article points out, the first half of the 20th century was dark time. And I'd be surprised if the present day court would rule the same way if the literal facts of the Chaplinksy case were repeated. It's an example of what I was talking about above: it's right that you aren't allowed to use your freedom of speech to incite violence. But the court in Chaplinsky extended that to protect the violent. It's a good thing that courts have been moving away from that heckler's veto. But I fear the way the politics of outrage is going, in 40 years time we will back to authoritarian norms that brought us two world wars.
- leggomylibro 9y ago
  Yeah, the Wikipedia page on 'fighting words' goes on to describe how the doctrine has since been limited. Shouting 'you are a fascist' at a cop probably wouldn't pass muster as unprotected speech these days (if you managed to make it to court alive and weren't preaching gibberish to a large crowd that was blocking traffic at the time.) Still, speech isn't somehow inherently harmless or different from other actions that we take. It's bad to take someone's things with a knife, but I'd say that it's even worse to take someone's humanity with a word.
  - ebcode 9y ago
    But you can't actually take someone's humanity with a word. That's hyperbole. Knife-point robbery is not. "You cannot, sir, take from me anything that will not more willingly part withal – except my life, except my life, except my life." -- William Shakespeare
    - leggomylibro 9y ago
      Well no, I can't. But a demagogue sure can. I guess it would be more accurate to say that they take humanity from a lot of people who belong to certain classes with a lot of words, but that's a messier metaphor.
adrianratnapala 9y ago
There is nothing special about speech here. In general I have a legal right to go the the park and wave my arms about. But punching people doesn't fall under that right, and wouldn't even if "the right to wave your arms about" were explicitly in the constitution. The thing that makes people so keen to find limitations on free speech in particular is that they are often keen to supress what someone else is saying and are casting about for an excuse that they can stretch in their favour.
kinkrtyavimoodh 9y ago
Compulsory reading before any legal discussion of free speech— https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-... "Trope Seven: "Fighting words" Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015. No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words." In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence. That's almost always irrelevant to the sort of speech at issue when the media invokes the trope."
- AnimalMuppet 9y ago
  Disclaimer: IANAL. I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me. But in our current culture, it has to be narrow. Otherwise, Antifa is going to claim "fighting words" justifies them brawling in the streets. And, legally, it does not justify it at all.
  - marcoperaza 9y ago
    >I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me. You're incredibly mistaken, and if you act on this misinformation, you're going to find yourself in prison for assault and battery. The "fighting words" doctrine has been repeatedly narrowed over time by subsequent decisions (and may not even exist anymore), and never excused any violence in the first place. It was an exception to free speech, not the provisions in the criminal code that prohibit violence.
marcoperaza 9y ago
You're quoting from a decision widely considered to have been wrong, and the reasoning of which is totally absent from modern free speech jurisprudence.

icebraining 9y ago

Chaplinsky is quite outdated. It's not clear that the Fighting Words doctrine even still exists at all, but to the extent it does, it requires a physical presence inviting to an altercation by being directed at someone. Prohibitions based purely on content of speech are not constitutional. (IANAL and this is not legal advice, of course)

adrianratnapala 9y ago
Indeed, I only just read about Chaplinsky -- and it seems pretty grubby and authoritarian. Just letting cops arrest people for -issing them off. As the original article points out, the first half of the 20th century was dark time. And I'd be surprised if the present day court would rule the same way if the literal facts of the Chaplinksy case were repeated. It's an example of what I was talking about above: it's right that you aren't allowed to use your freedom of speech to incite violence. But the court in Chaplinsky extended that to protect the violent. It's a good thing that courts have been moving away from that heckler's veto. But I fear the way the politics of outrage is going, in 40 years time we will back to authoritarian norms that brought us two world wars.
leggomylibro 9y ago
Yeah, the Wikipedia page on 'fighting words' goes on to describe how the doctrine has since been limited. Shouting 'you are a fascist' at a cop probably wouldn't pass muster as unprotected speech these days (if you managed to make it to court alive and weren't preaching gibberish to a large crowd that was blocking traffic at the time.) Still, speech isn't somehow inherently harmless or different from other actions that we take. It's bad to take someone's things with a knife, but I'd say that it's even worse to take someone's humanity with a word.
- ebcode 9y ago
  But you can't actually take someone's humanity with a word. That's hyperbole. Knife-point robbery is not. "You cannot, sir, take from me anything that will not more willingly part withal – except my life, except my life, except my life." -- William Shakespeare
  - leggomylibro 9y ago
    Well no, I can't. But a demagogue sure can. I guess it would be more accurate to say that they take humanity from a lot of people who belong to certain classes with a lot of words, but that's a messier metaphor.

adrianratnapala 9y ago

There is nothing special about speech here. In general I have a legal right to go the the park and wave my arms about. But punching people doesn't fall under that right, and wouldn't even if "the right to wave your arms about" were explicitly in the constitution. The thing that makes people so keen to find limitations on free speech in particular is that they are often keen to supress what someone else is saying and are casting about for an excuse that they can stretch in their favour.

kinkrtyavimoodh 9y ago

Compulsory reading before any legal discussion of free speech— https://www.popehat.com/2015/05/19/how-to-spot-and-critique-censorship-tropes-in-the-medias-coverage-of-free-speech-controversies/ https://www.popehat.com/2015/05/19/how-to-spot-and-critique-... "Trope Seven: "Fighting words" Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015. No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words." In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence. That's almost always irrelevant to the sort of speech at issue when the media invokes the trope."

AnimalMuppet 9y ago
Disclaimer: IANAL. I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me. But in our current culture, it has to be narrow. Otherwise, Antifa is going to claim "fighting words" justifies them brawling in the streets. And, legally, it does not justify it at all.
- marcoperaza 9y ago
  >I think "fighting words" is still a real thing in this sense: If I go into a bar, and say the wrong thing about someone's mother, the law is not going to be surprised that they throw a punch at me. You're incredibly mistaken, and if you act on this misinformation, you're going to find yourself in prison for assault and battery. The "fighting words" doctrine has been repeatedly narrowed over time by subsequent decisions (and may not even exist anymore), and never excused any violence in the first place. It was an exception to free speech, not the provisions in the criminal code that prohibit violence.

marcoperaza 9y ago

You're quoting from a decision widely considered to have been wrong, and the reasoning of which is totally absent from modern free speech jurisprudence.