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“Well, That Is the Limit”: The Dark Provenance and Dangerous Consequences of the Fighting-Words Doctrine
Eighty years ago today the Supreme Court placed an asterisk next to the First Amendment. The Court has yet to remove it.
by Nicholas Schwarz
In the years leading up to America’s entry into World War II, the US was embroiled in what today we might call a culture war. Revolutionary mass social movements from abroad had found adherents in the United States. Communism and Socialism both exerted a considerable influence on the American labor movement, and the Italian variant of Fascism was admired within the American Legion as an explicit analog to the Legion itself. The hostility these movements displayed toward one another raised the prospect of great social unrest that some feared might threaten the very foundations of democracy. Meanwhile, homegrown agitators such as the Ku Klux Klan, the anti-Semitic Christian nationalists Father Coughlin and Gerald L. K. Smith, and assorted groups, including, again, the American Legion, fashioned themselves crusaders for what came to be called “Americanism,” further exacerbating tensions. The apparent threat to democracy from such groups led some influential politically progressive intellectuals and jurists to argue that free speech had to be contained, lest anti-democratic forces use the tools of democracy to subvert democracy itself.
In this charged atmosphere, the Stars and Stripes, naturally, was a ready symbol around which one could demonstrate (or fail to demonstrate) adherence to the attitudes, rituals, politics, and religion of the at-times belligerent new social creed of Americanism. The Jehovah’s Witnesses were frequently targeted, both for their curbside proselytizing and for their unpatriotic scriptural interpretation, which equated saluting or pledging allegiance to the American flag with worshipping a false idol. In Rochester, New Hampshire, one such Witness, Walter Chaplinsky, having failed to make such a salute, was set upon by a violent mob and subsequently arrested, charged with having violated the peace. Outraged, he called the arresting officer who had failed to protect him from the mob a “damn Fascist”—an outburst that gave rise, however ironically, to the fighting-words doctrine. Eighty years ago today, on March 8, 1942, in upholding Chaplinsky’s conviction, Supreme Court Justice Frank Murphy, in Chaplinsky v. New Hampshire, defined fighting words as “those which by their very utterance inflict injury or tend to incite an immediate breach of peace.” Such words, per the doctrine, are beyond the protection of the First Amendment.
Since that unanimous decision, the Supreme Court has steadily walked back the doctrine, placing greater and greater restrictions on its application for fear of endorsing state suppression not just of words but of the ideas behind them. At the same time, however, a note of dissent has steadily sounded alongside this increasing restraint, and the Court has thus far refrained from overturning the doctrine. Meanwhile, as the history of fighting-words jurisprudence amply attests, because the fighting-words doctrine was and remains “good law,” counties and municipalities have often deployed it to quell dissent, which they have generally conflated with disruptive speech. As part of a body of disorderly-conduct law, the fighting-words doctrine is disproportionately applied to the poor and minority citizens with whom local law enforcement most frequently interacts. Police and prosecutors are largely free to define words and behavior—especially that which challenges police action—in whatever way best suits a charge of disturbing the peace. Such broad and sometimes arbitrary latitude on the part of the state and its law-enforcement apparatus is precisely what the Court has withheld in those fairly rare fighting-words cases that have reached it. Nevertheless, the Court has lacked the conviction to eliminate the fighting-words doctrine outright; instead it holds the doctrine in reserve, perhaps, as the essay below suggests, owing to the apparent belief that homegrown social unrest may yet reach proportions warranting the doctrine’s use. The Court’s irresolution has placed an undue legal burden on already disadvantaged people, who suffer from the perpetuation of an exception to their First Amendment rights. The essay below analyzes the background to, and strange career of, the “fighting words” doctrine.
Note: Please see the link to the endnotes for this essay at the end of the essay.
On April 6, 1940, in Rochester, New Hampshire, Walter Chaplinsky was arrested for the words he spoke. Convicted and sentenced to six months in prison for calling a police officer “a damn Fascist,” he appealed his case to the New Hampshire Supreme Court, arguing that his “fundamental liberties of speech, press and worship” had been breached.[i] Eventually, he would take his case to the United States Supreme Court, which, in a 1942 unanimous decision upholding his conviction, defined a new category of expression that it deemed unprotected by the First Amendment. Declaring “the social interest in order and morality” to be paramount, Justice Frank Murphy’s opinion in Chaplinsky v. New Hampshire excluded “fighting” words—“those which by their very utterance inflict injury or tend to incite an immediate breach of peace”—from speech safeguarded by the Constitution.[ii]
Over the next 80 years, the Chaplinsky decision and the fighting-words doctrine that it spawned have reflected America’s wider political, social, and racial struggles. The doctrine has been contested by civil-rights demonstrators,[iii] racist agitators,[iv] anti-war dissenters,[v] and the American Nazi Party;[vi] by citizens who have challenged abusive government conduct[vii] and by cross burners.[viii] The doctrine was idealistically invoked by the liberal Supreme Court Justice Robert Jackson as a bulwark against totalitarianism,[ix] and has been similarly invoked by the conservative Justice Samuel Alito to protect grieving families from homophobic vitriol.[x] It has been cited by Justices of all political bents both to safeguard cherished emblems of democracy[xi] and to nurture “ordered liberty”[xii] against what they have seen as the corrosive effects of savage public discourse.[xiii] Far more commonly, it has, as a matter of course, been incorporated into state and municipal disorderly conduct statutes and ordinances.[xiv] In that capacity, it has impinged on the lives of ordinary citizens, disproportionately the poor and minorities, as it is deployed by the agents of local law enforcement. It has been used to deter disorder, to combat racial and sexual harassment, and also—as the Supreme Court itself has established—to quash peaceful if vociferous dissent.[xv] The doctrine has also facilitated “harsh and discriminatory enforcement by local prosecuting officials against particular groups deemed to merit their displeasure,”[xvi] vested in police officers “unfettered discretion to arrest individuals for words or conduct that annoy or offend them,”[xvii] and indulged “the eternal temptation . . . to arrest the speaker rather than to correct the conditions about which he complains.”[xviii]
Soon after its ruling, the Court began to apprehend the danger that the Chaplinsky decision posed to civil liberties. Conceived at a time when the country seemed vulnerable to rabidly intolerant and potentially hate-mongering internal forces, the fighting-words doctrine was deliberately broad and ambiguous. It was designed to support, if necessary, efforts to check what seemed to be an emerging home-grown menace. But as anxiety over the peril receded, the Court was left with a doctrine that could not be applied for fear of destroying the values it had been created to protect. Despite hearing numerous cases that invoked the fighting-words doctrine, the Court has ultimately shrunk from affirming its use. Ironically, in fact, the only ruling the Court has upheld with fighting words convicted the very sort of person—a member of a despised minority—that the Court had intended the doctrine to defend.
Chaplinsky stood on the busy corner of East Wakefield and Main Street, facing what remained of the Rochester Common. Within sight of the statue of Amos Main, first pastor of Rochester’s Congregational Church[xix] (the original dissenting American religion), he preached the convictions of his faith—the Jehovah’s Witnesses—and distributed the sect’s literature. A mob of about 50 or 60 men derided and threatened him, insisting that he prove his loyalty to the United States by saluting an American flag, an act that the Witnesses’ faith prohibited. Rochester’s Marshal, James Bowering, arrived. Ignoring the restive mob, Bowering asked Chaplinsky why he could not “preach his religion without riling the people up so,” while another man, Bowman, grabbed Chaplinsky’s collar and tried to punch him, demanding, “Do you believe in saluting the flag?” Wrenching free, Chaplinsky asked Bowering to arrest his assailant. “I will if I feel like it,” Bowering replied.[xx]
Bowering and Bowman both left the scene, but Bowman soon reappeared with a staff to which he had affixed an American flag. Lunging with his lance-like weapon, he attempted to impale Chaplinsky. Chaplinsky dodged the blow, but Bowman pushed him into the gutter. The mob surged, and several men, including Sheriff’s Deputy Ralph Dunlap, punched Chaplinsky repeatedly in the face within sight of a police officer who was directing traffic a short distance away. Finally, the mob dispersed, and more officers arrived. They made no attempt to detain any assailants. Instead, they—including Deputy Dunlap—berated Chaplinsky, as they “swung [him] over the street staggering” to the police station, according to Chaplinsky’s testimony. “They were mistreating him, roughly handled,” a witness testified. “Pulling him and pushing him.” Chaplinsky implored Marshal Bowering to “please arrest the ones who started this fight.” According to Chaplinsky, the marshal replied, “Shut up, you dumb bastard, and come along.” Whereupon Chaplinsky responded, “You are a damn Fascist and a racketeer,” adding that if Dunlap was a deputy sheriff, “this whole city officials of Rochester are Fascists.” To which, according to Chaplinsky, Dunlap replied, “You son of a bitch, we ought to have left you to that crowd there and have them kill you.”[xxi]
Rochester’s city solicitor had previously advised Bowering that he could not stop Chaplinsky from preaching, but now the marshal believed he had reason for an arrest. “Sit down, you unpatriotic dog,” a witness heard Bowering say. “I am going to arrest you for calling me a God damned Fascist.”[xxii] Bowering was not sure, however, what specific law Chaplinsky had breached, as evidenced by his leaving the space for “offense” on the docket blank.[xxiii] Eventually, Chaplinsky was cited for violating an expansive law rarely invoked, which prohibited addressing “any offensive, derisive, or annoying word to any other person who is lawfully in the street or any other public place.”[xxiv]
The mob assault on Chaplinsky, abetted by the police, can only be explained in light of a persistent and intolerant nationalism that was intensifying as America prepared for war. In this context, the Jehovah’s Witnesses, a sect that saw patriotism as a false idol that enticed men to “the butchery of their fellows,”[xxv] appeared as a dangerous affront to those who demanded conformity and conspicuous displays of national loyalty. Although the population remained divided on the question of intervention in support of the Allies, much of the country seemed united in a rabid nationalism and fear of subversives.[xxvi]
In the period leading up to America’s entry into World War II, the body politic increasingly insisted on what the legal historian Vincent Blasi has described as a “pathological” degree of conformity.[xxvii] Amid rising public tension, Congress instituted the House Un-American Activities Committee (HUAC), an instrument that, with its broad powers to subpoena and hold witnesses in contempt, menaced civil liberties. In its efforts to root out subversion, HUAC, under the chairmanship of the right-wing Texas representative Martin Dies, almost entirely ignored pro-Nazi groups. Instead, the committee targeted Communists, alleged Communists, and such reflexively suspect groups as the American Civil Liberties Union (ACLU), socialists, and labor organizations—as well as such examples of public rectitude as the Secretaries of the Interior and Treasury, the Boy Scouts, and the Camp Fire Girls.[xxviii] Just five days before Chaplinsky’s arrest, the U.S. Attorney General and future Supreme Court Justice Robert Jackson warned his colleagues in the Justice Department of the danger that this intolerant nationalist “hysteria” posed to civil liberties. He recognized that an impulse that cast anyone “unpopular with the predominant group” as a subversive possessed the country, and that Americans would soon “cry for the scalps of individuals or groups because they do not like their views.”[xxix] Echoing Jackson’s assessment three months later, the New York Times detailed a national “wave of intolerance,” led by “self-styled patriots” and characterized by “local enactments and orders, mob violence and hasty formation of citizens’ committees dedicated to stamping out ‘subversive activities.’”[xxx] Dissent had become synonymous with sedition.
In this atmosphere, the Jehovah’s Witnesses were an obvious target. As Life succinctly explained: “Abhorring the authority and symbols of both state and church, Witnesses are accused of every form of treason.”[xxxi] Particularly galling was the Witnesses’ refusal to salute the American flag, which they perceived to be worshipping a false god, forbidden by their understanding of Biblical teaching.[xxxii] Adding to their resistance was the mandated form of the flag salute at the time, a stiff arm extended at eye level, which was nearly identical to the Nazi salute. The Nazi state was then imprisoning and executing German members of the sect for their refusal to swear allegiance to Hitler and serve in the military.[xxxiii] The ACLU documented American persecution of Jehovah’s Witnesses during 1940, citing more than 335 instances of mob violence ranging over 44 states, victimizing 1,488 men, women, and children.[xxxiv] Members of the American Legion, a group that had embraced a belligerently patriotic, anti-subversive stance, dubbed “Americanism,”[xxxv] orchestrated and led nearly half of the attacks, which were made up of as many as 2,000 rioters.[xxxvi] From Maine to Mississippi to Arizona to Wyoming, Witnesses were cursed, threatened with guns, beaten with fists and revolvers, tarred and feathered, kidnapped, and, in one case, castrated. Their property was damaged, destroyed, and stolen. The state of New Hampshire was particularly repressive, removing the children of Jehovah’s Witnesses from their homes and sending them to reformatories. The police, who often overlooked these mob attacks or even supervised them, jailed Witnesses without charges, administered beatings, refused to arrest identified assailants, and, in one instance, forced Witnesses to drink castor oil and then marched them through the streets.[xxxvii]
Mob violence in the name of patriotism and political conformity was not a novel feature of American life. In fact, since the First World War, the phenomenon of grass-roots popular repression had haunted American intellectuals, as well as civil libertarians, lawyers, and jurists—the Supreme Court Justices among them. What retrospectively most troubled liberal opinion about the breach of civil liberties during the First World War and the “Red Scare” in the war’s aftermath were not the draconian federal laws and enforcement actions that had clamped down on political dissent, but the hysterical, often violent cultural and political repression imposed by local groups.[xxxviii] This repression emanated from mobs and ad hoc citizens’ groups, from the newly formed American Legion, and from state and local police, prosecutors, judges, and juries that reflected and responded to popular passions.[xxxix] “Not only were radical and pacifist tendencies . . . thoroughly suppressed,” historian Henry May explained, “but the lukewarm, the reticent, or the unpolitical were often hounded and pilloried.”[xl] Walter Lippmann, the esteemed public intellectual and close friend of Supreme Court Justice Felix Frankfurter, outlined the liberal perspective: the defining political problem confronting the country was to enable the people “to govern themselves without being driven by . . . their own passing hysterias into disaster and the suicide of democracy.”[xli] According to this perspective, a persistent intolerant pathology menaced the freedom of speech, political and intellectual dissent, and minority rights—the hallmarks and foundations of democracy, according to this perspective.
To those who shared Lippmann’s point of view, this pathology found expression in the 1920s in the mass appeal and electoral successes of the revived Ku Klux Klan and in the sway of such flag-waving groups as the American Legion. Through its network of local “Posts,” a vital feature of white middle- and lower-middle-class community life throughout the country, the Legion exercised a coercive conformity and imposed what the Nation magazine characterized as a “hysterical super-patriotism”:
The Legion has established a censorship of public meetings and by actual or threatened violence suppresses freedom of speech; it is attempting to dictate the instruction in our public schools . . . ; although nominally non-political it has sponsored a host of bigoted and repressive laws and policies.[xlii]
Identifying America’s internal enemies as socialists and organized labor, Alvin Owsley, the National Commander of the Legion, made plain in an interview with the Scripps-Howard Press in 1922 that the Legion would be ready to take over the government “to protect our country’s institutions and ideals as the Fascisti dealt with the destructionists who menaced Italy!” Asserting that “the Fascisti are to Italy what the American Legion are to the United States,” Owsley explained that “the Legion is not in politics . . . But there is plenty of politics in the Legion—potential power, I mean.”[xliii] Although undeniably popular, the Legion, to many observers, was nevertheless inimical to American democracy.
By the mid-1930s, intellectuals and jurists perceived that this reactionary repression entailed an even darker menace. Their apprehension of the growing threat of Nazi Germany, together with their understanding of the methods and circumstances that permitted the rise of Nazism, suggested that America’s own intolerant pathology—which the left-wing editor Max Lerner called “regional fascism”[xliv]—could be mobilized to threaten democratic government. A 4,700-word report by James Wechsler in the Nation in 1939 outlined the relationship that liberal opinion perceived between such outbreaks of home-grown intolerance and a wider threat to the democratic order. Wechsler detailed the escalating vituperative rhetoric, mob demonstrations, and street violence—often with the tacit approval of policemen on the beat—directed against Jews in New York City. He then demonstrated how the perpetrators included the usual suspects—“some professional anti-Semites,” as well the Christian Front, the pro-Nazi German American Bund, and the Christian Labor Front (an organization of Irish-Catholic transport workers)—but largely consisted of “an assortment of ‘patriotic’ groups” that included the Protestant War Veterans, the American Nationalists, and the Crusaders for Americanism. Although Wechsler noted that “at the moment” the threat from this phenomenon was “more potential than actual,” he concluded that it “has visible national significance. The city has become a laboratory for carefully developed fascist experimentation . . .”[xlv]
In a widely publicized speech on January 7, 1940, U.S. Attorney General Frank Murphy, ten days before joining the Supreme Court, laid bare just what he saw as the national significance of the phenomenon that Wechsler had exposed. Murphy explicated the largely familiar tactics used by home-grown intolerant groups: “They . . . represent themselves . . . as defenders of God, America and the Constitution . . . they stir up riots in the city streets, they intimidate peaceful citizens, they invade meetings.” By such means, Murphy asserted, democratic processes would be undermined, and domestic conflict would be fomented, with ruinous consequences for constitutional government.[xlvi] Anxious to sever such a chain of events, Frankfurter, in a letter to his friend Lerner, identified the paramount need “to inoculate our people against fascist-mindedness.”[xlvii]
Because of such foreboding, many intellectuals who had formerly been committed to civil liberties readily, almost eagerly, jettisoned that commitment. Echoing Wechsler and Murphy, they pointed to the growing political muscle of intolerant groups, and to the mass appeal of the anti-Semitic speakers Gerald L. K. Smith and Father Charles Coughlin—who, the liberal columnist Dorothy Thompson wrote, “blend[ed] the familiar pattern of racial antipathy, anti-tradeunionism, and vague populism”[xlviii]—as evidence of a potential authoritarian threat to democracy. To counter that threat, Lerner, who was also a friend of Supreme Court Justice William O. Douglas, advocated a response that he referred to as “Militant Democracy,”[xlix] a posture that was itself distinctly illiberal. Decrying what he saw as rampant “anti-labor, anti-democratic and anti-Semitic lies,” Lerner embraced such measures as a federal “Truth in Opinion” board that would police and investigate the press, and political organizations and their publications, and “ban” opinions that it deemed “poisonous or spurious.”[l] To those who argued that such measures were antithetical to democracy, the progressive journalist Lewis Mumford replied by disparaging the “crazy ethical absolutism” of such groups as the ACLU. He insisted that “if democracy is to preserve its very existence, the majority must not scruple to use any necessary amount of coercion upon minority groups.” He charged civil libertarianism with facilitating the fascist tendencies abroad in the land.[li]
This indictment of American civil liberties extended to the intellectual framework of the Constitutional protections and jurisprudence on which they were based. “Legal Realism” had dominated legal thinking and scholarship in the 1920s and early 1930s. Centered at the law schools of Yale and the University of Chicago, embraced by Justices Douglas and Harlan Fiske Stone, Legal Realism shunned the notion that the law should or could seek to apprehend universal moral principles and abstractions such as “justice.”[lii] Rooted in the ideas of Oliver Wendell Holmes, Jr., and shaped by the positivist approach in the social sciences, the realists insisted on a value-free, relativist approach to the law.[liii] Although Legal Realism’s adherents were mostly liberals and New Dealers, by the late 1930s their astringent intellectual perspective troubled those who believed that the law should be a bulwark of democracy, which was itself a bulwark against Nazism. “The realists had raised, unintentionally, fundamental questions about the possibility and validity of democratic government,” the historian Edward A. Purcell explains.[liv] If all law—and all values—were relative, on what basis could Nazism be deplored and democracy defended?
The objections that applied to relativism also applied to the defining idea, formulated by Holmes, that underpinned and animated First Amendment jurisprudence: “free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market.”[lv] This laissez-faire approach dictated that the courts exercise strict neutrality in their treatment of viewpoints and ideas. As Holmes had asserted in arguing the unconstitutionality of banning Communist pamphlets advocating an anarchist revolution: “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”[lvi] This scrupulously relativist judicial stance could be regarded as amoral—a posture that Holmes, himself, had mischievously embraced: “If my fellow citizens want to go to hell,” he insisted, “I will help them. It’s my job.”[lvii] But to some critics of America’s response to what they saw as the potential internal totalitarian threat, Holmes’s robust civil libertarianism amounted not just to amorality but to nihilism.
In the face of that threat, the survival of America’s democracy demanded nothing less than that the country forsake its devotion to “democratic fundamentalism” in favor of “authoritarian democracy”[lviii]—so argued Karl Loewenstein, a German Jewish émigré law professor, in a series of urgent articles in the Columbia Law Review and the American Political Science Review in 1937 and 1938.[lix] His articles, written from the context of the Nazi seizure of power in Germany and the threat that other far-right subversive groups were posing to Western European governments, galvanized both intellectuals and the legal community in America.[lx] Loewenstein—who corresponded regularly with Frankfurter, Stone, and Justice Louis Brandeis,[lxi] and from whom Lerner had appropriated the term and idea “Militant Democracy”—demonstrated that extremists had prevailed by “invoking free speech . . . for intrinsically subversive aims.” He defined the common goal of the extremist groups as the “legal conquest of the democratic state.” He pointed to “the native brand of patriotic terrorism” and to “radical movements by the ‘right’ which are directed against the existing form of popular government”[lxii] as the closest and most menacing American analogy to those groups. Arguing that constitutional democracy had essentially to become authoritarian itself to protect itself from such subversion, he endorsed an array of illiberal measures that European legislatures had enacted to counter the extremist threat—including severe limitations on assembly, speech, and the press, banning hate speech, mandatory reporting of political activity deemed suspicious, the abrogation of judicial review, and the formation of political police forces with virtually unlimited powers of surveillance and suppression.[lxiii]
Committed to the civil libertarianism enunciated by Holmes, the Justices who would hear the Chaplinsky case would not have let pass Lerner’s progressive prescriptions to combat “regional fascism.” Still less would they have tolerated Loewenstein’s authoritarian legislative agenda to fight “patriotic terrorism”—as now-Justice Jackson’s full-throated wartime assertion would make plain. “The very purpose of a Bill of Rights,” he pronounced, “is to withdraw certain subjects beyond the reach of majorities . . . One’s right . . . to free speech, a free press . . . and assembly . . . may not be submitted to a vote; they depend on the outcome of no election.”[lxiv] Nevertheless, the Justices were no doubt aware of this intensifying current of opinion, much of it generated by their friends and correspondents, that indicted those who adhered to the Court’s dominant approach to free speech as, in Mumford’s phrase, “abettors” of the very forces that would destroy democracy. Moreover, Justices Murphy and Jackson were unusually sensitive to the potential dangers of nativist intolerance. As Attorneys General, each had directed crackdowns—carried out by the Civil Liberties Unit of the Justice Department’s Criminal Division that Murphy had established—on nativist anti-Semitic organizations, anti-labor vigilantes, the anti-subversion activities of the American Legion, and on persecution directed against the Jehovah’s Witnesses. Both had warned of hate-mongers who would exploit what Murphy called “the seeds of barbarism that have been sown among us,” and both had spoken frequently, forcefully, and publicly against home-grown violent intolerance, which they characterized as a persistent threat to democratic institutions.[lxv]
This tension between the Court’s commitment to civil liberties and its foreboding about the pathological reactionary strain in American life helps explain a striking feature of the 1940 decision in Cantwell v. Connecticut. Like Walter Chaplinsky, the Cantwells—father and two sons—ran afoul of the law because their conception of their religious duty as Jehovah’s Witnesses clashed with a local community’s hostility to their sect. In fact, similar clashes between Jehovah’s Witnesses’ religious practices, on the one hand, and localities’ efforts to curb those practices, on the other, resulted in 23 Supreme Court opinions between 1938 and 1946.[lxvi] Firmly demonstrating its commitment to civil liberties, the Court ruled in a unanimous decision that, while the Witnesses’ proselytizing “aroused animosity,” the First Amendment protected their peaceful exercise of their faith.[lxvii] Immediately after this endorsement of civil liberties, however, the Court issued a dictum, at Murphy’s insistence, that was irrelevant to the issues and facts at hand.[lxviii] In a case revolving around the disputed disorderly nature of members of a sect that was enduring violent organized persecution at the hands of patriotic mobs, the Court, conspicuously mindful of intolerant violence at home and abroad, declared:
The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence . . . in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions . . . the States appropriately may punish.[lxix]
Murphy had argued, and his fellow Justices had concurred, that, given the persistent threat from home-grown hate-mongers, the Court should declare that it would (in theory) view as constitutional (unspecified) measures of the state to curb the speech of intolerant groups that (in unspecified ways) served to intimidate their targets. By this sweeping and ambiguous declaration, the Court signaled that it had a license that authorities might use to thwart the tactics that Wechsler had described and that Murphy had warned about in his speech four months before.
The Supreme Court’s articulation of the fighting-words doctrine in the unanimous Chaplinsky decision two years later similarly demonstrated both the Court’s civil-libertarian inclination and its unease about how hate-mongers could exploit their constitutional liberties. In upholding Chaplinsky’s conviction, the New Hampshire Supreme Court had already severely constricted the overbroad disorderly conduct law that Marshal Bowering had retroactively used to justify Chaplinsky’s arrest, construing it to prohibit as “fighting words” only “face-to-face words plainly likely to cause a breach of the peace by the addressee.”[lxx] When Chaplinsky appealed to the U.S. Supreme Court, that body had only to determine whether the ruling was constitutionally sound, but instead, for the first time, it seized an opportunity to carve out categories of speech not safeguarded by the First Amendment. In its own definition of “fighting words,” the Court accepted wholesale New Hampshire’s construction, which was so narrowed that future Courts would not be convinced that a single other case brought before them could fit into its parameters. But it also added a clause that allowed for the possibility that almost any speech, if the circumstances warranted, might be unprotected. This addition—“words . . . which by their very utterance inflict injury”[lxxi]—was conspicuously ambiguous. It was impossible to pin down what was meant by “injury,” when words were the weapons, because the damage had no physical manifestation.
In supplying both a precise and an ambiguous reading of what constituted “fighting words,” the Court provided the means for supporting both a libertarian application of the fighting-words doctrine and, if need be, a repressive one. In the years following the Chaplinsky decision, the Court, consistent with its civil-libertarian bent, would use the precise reading to continue to contract the definition of this kind of unprotected speech, thereby curbing states’, municipalities’, and particularly law enforcement’s abuse of the fighting-words doctrine. At the same time, with the ambiguous reading, the Court held in reserve, and would occasionally be tempted to use, the means by which it could uphold the state in shutting down an intolerant group’s attempt to foment hate to subvert democracy.
In three bitterly divided cases in the period 1949–1952, Justices deployed Chaplinsky—and in one instance, the Cantwell dictum—to argue for the suppression of hate-mongering speech. To many observers, the early Cold War years seemed to have reinvigorated the persistent strain of “hysterical super-patriotism” that The Nation had identified decades earlier. According to this view, HUAC was again stoking the “paranoid style” of native intolerance, and an extreme “New American Right” seemed to be ascendant.[lxxii] Familiar extremist figures from the prewar era, including Gerald L.K. Smith, were resurgent. Justices shared these anxieties; in a 1951 letter, for instance, Frankfurter warned Jackson of the reactionary “exploiters of the irrational in the land.”[lxxiii]
These fears informed Frankfurter’s opinion in Beauharnais v. Illinois, which the Court heard that same year. Invoking “the tragic experience of the last three decades,” that opinion sanctioned Illinois’s right to punish venomous speech directed at racial and religious groups. Citing Chaplinsky, Frankfurter argued that such speech could ignite civil strife, which could in turn subvert the democratic order. He also unsheathed the dictum that Murphy had cannily insisted be inserted in the Cantwell opinion. This he applied to justify the restraint of the sort of home-grown intolerant group that Murphy, as Attorney General, had identified as a threat in the late 1930s.[lxxiv] Similarly, in Kunz v. New York (1951), Jackson, probably influenced by his experiences monitoring aggressive patriots as Attorney General and even more profoundly by his work as the chief prosecutor at the Nuremburg trials,[lxxv] argued in his dissent that New York should be able to exercise prior restraint to check anti-Semitic vitriol because of its potential to undermine democracy. “Essential freedoms,” he stated, “are threatened from without and within.” In such a setting, “to blanket hateful and hate-stirring attacks on races and faiths under the protection of freedom of speech,” he maintained, “may be a quixotic tilt at windmills which belittles great principles of liberty.”[lxxvi] In 1949, he had spelled out the danger he perceived in such speech, when, in Terminiello v. Chicago, he explicated a direct link between home-grown hate-mongering and the tactics the Nazis had used to democratically seize power.
To the Christian Science Monitor, the stakes in Terminiello were high: “The Court carries with it the potential safety of . . . the nation in event of a serious drive by some kind of totalitarianism—communism, fascism, or supercharged Americanism—to capture the United States.”[lxxvii] The paper’s anxieties reflect the seriousness with which informed opinion took home-grown threats to American democracy, even in the postwar era. Arthur Terminiello, a “Christian Nationalist,” was arrested in Chicago and charged with “creating unrest” when he delivered an anti-Semitic speech at the invitation of Gerald L. K. Smith. [lxxviii] Although the Court was deeply divided, it narrowly confirmed its civil-libertarian tendency in a five-to-four decision. Expressing the Court’s opinion, Justice Douglas limited the fighting-words doctrine and argued that Chaplinsky did not apply. Speech that provoked, even speech that stirred anger, did not qualify as fighting words. Douglas explained that the Constitution in fact safeguarded most especially speech that produced an angry response: “A function of free speech . . . is to invite dispute. It may best serve its high purpose when it induces a condition of unrest . . . or even stirs people to anger . . . as it presses for acceptance of an idea.” The willingness to tolerate, even to encourage, ideas deemed offensive set democracy apart from totalitarianism.[lxxix]
In what would become a common minority reaction to hate-speech cases on the Court, Frankfurter responded emotionally to the facts. “To say that a state cannot say that this kind of speech cannot be made—well, that is the limit,” he declared after hearing oral arguments.[lxxx] Jackson pointed out that Terminiello “hurled” racial epithets, as if they were weapons capable of causing injury, “at an already inflamed mob of his adversaries.” Such “violent and noisy shows of strength,” Jackson argued, were the tools the Nazis had used to “paralyze . . . democratic authority” in the fight for “the conquest of the streets” that had, as Loewenstein had elucidated, allowed National Socialism to subvert democracy in Germany. Thus, he argued for applying Chaplinsky to uphold Terminiello’s conviction, rather than let a “dogma of absolute freedom” undermine the state. Appealing to common sense, he urged the Court to “temper its doctrinaire logic with a little practical wisdom,” so that it did not “convert the constitutional Bill of Rights into a suicide pact.”[lxxxi] From Jackson’s point of view, an unwavering adherence to the concept of civil liberties failed to consider social and historical forces.
For the next 60 years, Jackson’s and Douglas’s conflicting opinions would exemplify the Court’s—and society’s—conflicting approach to free speech, generally, and the fighting-words doctrine, specifically. Douglas’s view, embracing Holmes’s laissez-faire approach, would be by far the dominant strain. The Chaplinsky decision was the first and last to define categories of expression that are beyond First Amendment protection, and the Court would almost immediately and thenceforth steadily limit and contain the doctrine that it had created. Indeed, just a year after Chaplinsky, the Justices found that the very word that had sustained the verdict against Chaplinsky—“fascist”—was merely “loose language” and “part of the conventional give-and-take in our . . . political controversies.”[lxxxii] Consistent with this approach, the Court would continue to narrow what could be considered “fighting words,” following the reasoning articulated by Justice John Marshall Harlan, who argued that “we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed,” he continued, “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”[lxxxiii] As the Court hugely contracted what constituted fighting words, the concept of protected political expression expanded concomitantly. In a flurry of decisions at the height of the Vietnam and Black Power protest movements, the Court found that speech could be valuable as much for the emotion it conveyed as for the reasoning it elucidated.[lxxxiv] The Court would also erode the efforts of the police to use a “fighting words” charge to deter or punish those who, like Walter Chaplinsky, criticized police conduct or whom law enforcement found otherwise objectionable. As Justice Blackman admonished the appellee in 1987, “the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”[lxxxv] The upshot of this steady constriction of the fighting-words doctrine in the years following Chaplinsky is that by the early 1970s, at the latest, Walter Chaplinsky’s verdict would surely have been reversed by the Court; the fighting-words doctrine would have dictated the overturning of the very case that engendered it.
But a version of Jackson’s point of view has persisted. In divided opinions, substantial minorities on the Court have urged that the doctrine be applied in cases involving forms of hate-mongering.[lxxxvi] In all of these cases, the minority opinions have cited the “inflict injury” clause of Chaplinsky. None of these dissents have overcome the Court’s uncompromising logic—cited in the Seventh Circuit’s ruling, which the Court let stand, permitting the Nazi Party of America to march in Skokie, Illinois—that “under the First Amendment there is no such thing as a false idea.”[lxxxvii] Still, the Court has not overturned Chaplinsky and has at every opportunity affirmed the vitality of the fighting-words doctrine. The explanation may lie in Cantwell. If the Court indeed included Chaplinsky’s “inflict injury” clause for the same reason it added the dictum in Cantwell, it was holding a doctrine in reserve, because the danger it discerned from mass intolerant forces seemed compelling. There may well have been significant continuity between, on the one hand, the menace that preoccupied American intellectuals in the interwar years and, on the other, the American Nazi Party demonstrating in 1978, misfits burning crosses in 1992 and 2003, and homophobic protesters hurling virulent slogans in 2011 (to mention four instances in which the Court took up the fighting-words question.)[lxxxviii] But the later, seemingly isolated manifestations of paranoia and intolerance, did not represent the same sustained, pervasive threat that mass reactionary repression seemed to pose in the 1930s and early 1940s. So the fighting-words doctrine is moribund, and the Cantwell dictum has been interred.[lxxxix]
At bottom, though, the Court’s outlook is pessimistic and mistrustful, given that its ultimate purpose, as Jackson declared, “is to withdraw certain subjects beyond the reach of majorities.” Put another way, the Court’s role is to be at the ready to save the United States from its citizens. Such a viewpoint clearly informed the offhand confession of the esteemed constitutional scholar Bruce Ackerman: “I myself think it would be a good idea to entrench the Bill of Rights against subsequent revision by some future American majority caught up in some awful neo-Nazi paroxysm.”[xc] The expansive conception of the fighting-words doctrine embodied in the “inflict injury” clause, born in response to the peculiar anxieties of its time, cannot be reconciled to the broad direction that First Amendment jurisprudence has taken for the past one hundred years. But perhaps the Court recognizes in that doctrine a weapon to be wielded in very different times against a tenacious tendency grown newly strong. ++