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Fighting Words

On Behalf of | Jul 27, 2021 | Firm News |

DISCLAIMER: this post includes strong, offensive language.

What would you say if I asked you whether the government could prosecute you for saying something that society finds offensive?

“Not in America,” you might say, right?

“Freedom of speech,” right?

Well, yes and no.

You see, the First Amendment, like many of our Constitutional rights, is not absolute. There are exceptions to the rule, places where it doesn’t apply, conduct that it doesn’t cover.

One of them is the so-called “fighting words” exception, which basically states that the government can infringe on your First Amendment rights—your freedom of speech—if the things you’re saying are “likely to provoke a violent response.” It’s because of that exception that we have laws that criminalize things like breach of peace, creating a disturbance, or inciting a riot. But the question often arises in those sorts of cases: where is the line between free speech and criminal conduct?

That was the question in a recent case called State of Connecticut v. Liebenguth. In that case, a parking attendant in the Town of New Canaan, Connecticut was racially abused by a local man who called him a “fucking nigger,” and told him to “remember Ferguson [Mississippi].” The parking attendant reported the incident to the police, and the local man was arrested, prosecuted, and convicted of breach of peace. He appealed the conviction, arguing that what he said to the parking attendant was protected by the First Amendment, and the case went all the way to the CT Supreme Court.

Now, as you might expect, the Supreme Court did not overturn the local man’s conviction. Here’s what the court had to say about the language at issue:

“Not only is the word ‘nigger’ undoubtedly the most hateful and inflammatory racial slur in the contemporary American lexicon, but it is probably the single most offensive word in the English language. No word is as odious or loaded with as terrible a history.”

Now, in the year 2021, it’s not going to be breaking news to anyone that the word “nigger,” especially when used by a white person and directed at a black person, is offensive. It’s also pretty uncontroversial to say that calling an African American person a “fucking nigger” is conduct “likely to provoke a violent response.” So we shouldn’t really be surprised that the state supreme court upheld the conviction.

What is interesting though, is what the court said in getting to that result, and what it means going forward. There’s obviously some tension here for all of us, right? We can, I hope, all agree that language of the sort used in this case has no place in modern society. But, at the same time, I think most Americans get a little bit uneasy at the idea of the government charging someone with a criminal offense because of what they say or think, no matter how disgusting those words and thoughts may be.

The other interesting issue in this case is what I’ll call the evolving standards of the Constitution. Think of it this way: if one of the ways we decide which language gets (or doesn’t get) First Amendment protection is the effect it has on the people who hear it, doesn’t that mean that the First Amendment itself changes as we as a society evolve? And as certain words become either more or less offensive, doesn’t the scope of the First Amendment expand and contract along with them?

As an example of this, consider the first U.S. Supreme Court case to consider the “fighting words” exception. In that case, the defendant referred to the victim as a “God-damned racketeer,” and a “damned fascist.” That was highly offensive language in the early 1940s, but these days, no one would bat an eye at it. Most people wouldn’t even be offended, just confused. There’s practically no chance that language would provoke violence. And that’s because we as a society tolerate much more vulgar language these days than we did back in the early 1940s. Curse words and racially charged language that used to be censored by the government now appears on network television. Most of us don’t think twice about using language that, even twenty years ago, would have provoked a serious negative reaction.

It’s worth thinking about what that means in First Amendment terms. The n-word is still not protected by the First Amendment, and that’s not going to change. But many of the other offensive words of the English language have gone from “fighting words” to protected speech. That is, as we’ve evolved as a society and come to tolerate more and more offensive language, the scope of the First Amendment has expanded along with us. More language is protected than ever before, which you might say means society as a whole has more freedom. But at the same time, you could argue that people are now licensed to be more cruel and vulgar toward one another than at any point in our history.

Now, you might agree with that assessment, and you might disagree with it, but it’s something worth thinking about. And it’s also worth considering how far we want to go—how much we as a society want to tolerate. Those are questions you and I have to answer for ourselves, but there are answers out there. As you read this, the U.S. Supreme Court has recently handed down its decision in Mahanoy Area School District v. B.L., which is a case that’s going to shake up the First Amendment landscape. I won’t spoil the outcome there if you’re not familiar with it, but if you’re interested in the subject, there will be a full rundown coming up soon on The Impartial Review.

So check that out, and as always, feel free to get in touch with questions, comments, and thoughts.

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