The First Amendment to the United States Constitution reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Town Hall Meetings being held throughout the United States concerning Healthcare Insurance Reform is receiving considerable attention from the media for the rowdy behavior of some in attendance. Epithets are being shouted which disrupt an orderly exchange of information and ideas.
Issue: Is offensive speech within the bounds of the First Amendment?
In Chaplinsky vs. New Hampshire decided by the U.S. Supreme Court decided the issue. [1942] (315 U.S. 568) The state statute provided:
“…any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place,” or “call him by any offensive or derisive name,” was construed by the New Hampshire Supreme Court as limited to the use in a public place of words directly tending to cause a breach of the peace by provoking the person addressed to acts of violence.
Facts:
Chaplinsky was distributing Jehovah’s Witness literature on a public street on a busy Saturday. Members of the local citizenry complained to the City Marshal that Chaplinsky was denouncing all religion as a “racket.” The Marshal told them Chaplinsky was lawfully engaged, and then warned Chaplinsky the crowd was getting restless. Later, a disturbance occurred. A traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. Enroute they encountered the Marshal, who had been advised a riot was under way and was hurrying to the scene. The Marshal repeated his earlier warning to Chaplinsky, who then addressed the Marshal with the words set forth in the complaint.
The complaint alleged Chaplinsky “with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the words following, addressed to the complainant, that is to say, ‘You are a God damned racketeer’ and ‘a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,’ the same being offensive, derisive and annoying words and names.”
A jury convicted Chaplinsky. Over Chaplinsky’s objection, the trial court excluded, as immaterial, testimony relating to Chaplinsky’s mission “to preach the true facts of the Bible,” his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below, which held that neither provocation nor the truth of the utterance would constitute a defense to the charge.
The New Hampshire Supreme Court upheld the conviction. On appeal Chaplinsky raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled, and the case came to the U.S. Supreme Court on appeal.
The U.S. Supreme Court Held:
“…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 have 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.”
“The word “offensive” is not to be defined in terms of what a particular addressee thinks…. The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight…. The English language has a number of words and expressions which, by general consent, are “fighting words” when said without a disarming smile…. [S]uch words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace…. The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker–including “classical fighting words,” words in current use less “classical” but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.”
“Argument is unnecessary to demonstrate that the appellations “damned racketeer” and “damned Fascist” are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”
The U.S. Supreme Court affirmed Chaplinsky’s conviction. The use in a public place of words directly tending to cause a breach of the peace by provoking the person addressed to acts of violence is not protected by the First Amendment.
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