22.

SOME WORDS, BY “THEIR VERY UTTERANCE,” LOSE THEIR FREE SPEECH PROTECTIONS

The Founders had fewer hang-ups about speech and possessed more common sense about it as well.

UNDER EXISTING FIRST Amendment case law, some speech is permissibly restricted for categorical reasons. The Fighting Words Doctrine and its seminal case, Chaplinsky v. New Hampshire, is one such category. A civilized society is one that is not prone to casually hurling fighting words at each other. Civilization commands citizens to renounce dueling and honor killings and resolve their disputes through the apparatus of the state. Words that offend human dignity, therefore, expressly violate this legitimate objective of the state. In Chaplinsky, the Supreme Court made special mention of proscribed speech that is defined as the “insulting or ‘fighting words’—those by which their very utterance inflict injury or tend to incite an immediate breach of the peace.”²⁰⁷

Words by “their very utterance,” and nothing more, can “inflict injury.” Nothing else need occur. Merely by speaking them, injury is presumed. Its utterance is per se without First Amendment protection. The language of Chaplinsky is a very powerful statement that the First Amendment cannot operate independent of human dignity. Free speech can never be so free so as to allow certain words to inflict injury or instigate a fight. The Fighting Words Doctrine comes into play when the boundaries of civility have been crossed, injury caused by words is likely, and dignity and social status are under attack. Such hostile circumstances lose protection of the First Amendment.

Placing a limitation on free speech just to curtail physical violence is only half of the human story. Preventing harm to dignity is its own moral imperative.

The Supreme Court understood that some words, by their very utterance, directly cause injury even if they are not likely to instigate a retaliation. The injury they cause is in the form of dignitary harm. And that is injury enough. The Fighting Words Doctrine strips two categories of words that would otherwise receive First Amendment protection: those with the potential to incite a fight; and those that are an affront to human dignity. The Fighting Words Doctrine applies not just in circumstances where speech provokes a fight, or raises the specter of a breach of peace, but also to words that might make a reasonable person fear for his or her safety or violates his or her privacy rights by causing harm to personal dignity.

“Fighting Words” is a catchall phrase for all harm-producing speech. As Heyman pointed out, “It is precisely because fighting words ‘inflict injury’ that they ‘tend to incite an immediate breach of the peace.’ Fighting words injure others through aggression as well as through assaults on their dignity.”²⁰⁸

The Founders had fewer hang-ups about speech and possessed more common sense about it as well. For instance, speech that was prohibited under the Sedition Act of 1798, such as malicious writing against the government “with the intent to defame, or bring either into contempt or disrepute,” was widely accepted by most citizens. Today, such an overtly censorious measure by the government would not only be regarded as unconstitutional, it would start a riot.²⁰⁹

Those who align themselves ideologically with the originalist meaning of the Constitution might be surprised to learn that the Framers did not regard speech as the most important liberty within the panoply of First Amendment rights. Freedom of the press, actually, was arguably more fundamental. In fact, in earlier drafts of the Bill of Rights and the amendments to the Constitution, speech was separated from press, religion, and assembly. That’s right: The Free Speech Clause was not originally even in the First Amendment, and it surely was not given carte blanche over other rights. The Founders believed speech to be a natural right, but they did not agree that the government was obligated to protect every kind of speech imaginable. If speech did not serve the public good, if it did not advance the aims of citizenship, it fell outside the operation of the First Amendment completely.

Law professor Jud Campbell argued in 2017 that, when it came to the Free Speech Clause of the First Amendment, the Founding Fathers were primarily interested in the “freedom to make well-intentioned statements of one’s thoughts.”²¹⁰ Speech was never intended to be a freedom without restriction, and the “First Amendment was not presumptively insulated from governmental regulation.”²¹¹

In the context of the First Amendment, speaking, writing, and publishing could be restricted by laws that were intended to promote and protect the public good.²¹² James Madison, for instance, granted the government authority to take actions to maximize the public good in the collective sense. The goal was to achieve the “safety and happiness of society” as a whole—for everyone, not just for narcissistic speakers.²¹³

According to Campbell, the narrow private interests of a speaker’s First Amendment protections were always meant to be subordinated to the interests of the whole society—the “common good, the Founders repeatedly implored, often required individual sacrifices.”²¹⁴ Sometimes the rights of an individual must be sacrificed for a greater good.

The exercise of free speech loses its constitutional legitimacy once “well-intentioned statements” are revealed to be not so well intentioned—if they brought about “direct injury to others.”²¹⁵ Writing in 1788, Pennsylvania jurist Thomas McKean defined the right to free speech as a liberty for “every man to publish his opinions, but it is due to the peace and dignity of society to enquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame.”²¹⁶

Purposeful speech is free; injurious speech is too costly for all of society to bear. Cross- and flag-burnings, swastikas, gay bashing, and the indecent disruptions of funerals was surely not what they had in mind. In situations like these, when constitutional freedoms collide, it is helpful to deploy a little thought experiment and ask: What would George Washington do—or, even better, what would he have thought? Would he have believed that the First Amendment guaranteed the right to burn a flag in front of a family whose son gave his life fighting for American freedom?

Of course not. Surely one’s discontent with the direction of American politics could be communicated in some other more dignified and mutually respectful fashion.

It is for the speaker to conform to the civilizing norms of society, to frame his speech in the language that captures the attention of listeners, rather than to drive them away in agony. Campbell wrote that “freedom of opinion did not encompass all expression. Individuals who joined together in a social contract . . . had no reason to immunize efforts to lie or mislead. Nor did they need to prevent the government from preserving norms of civility and morality. . . . [T]he Founders constantly mentioned that the inalienable right to speak was limited to those who spoke with decency and truth.”²¹⁷

That is because free speech had a purpose beyond simply advancing the antagonistic agenda of a hateful speaker. Free speech was necessary for the discovery of universal truths. What the Founding Fathers had in mind were town hall meetings where citizens gathered to debate matters of public concern. Robert H. Bork, many years before his scuttled nomination to the Supreme Court, famously wrote in 1971, “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression.”²¹⁸ Meiklejohn wrote of the fundamental belief in the First Amendment as the legal guardian of public, political debate, where “every citizen has . . . a right to . . . dignity—the dignity of men who govern themselves.” This requires the mutual respect of “citizens engaged in ‘a common enterprise.’”²¹⁹

The right to free speech was never divorced from a companion obligation to do so with decency. Respecting the dignity of the intended audience was a condition of the free speech compact. In a session dedicated to revising Madison’s proposed Bill of Rights, the committee decided that one of the natural rights that must be retained from the earlier drafts was the right of “[s]peaking writing and publishing . . . with decency and freedom.”²²⁰ Decency is never achieved by alienating and injuring an audience. And freedom assumes a maturity of mind and a mutuality of a shared liberty between speaker and listener.

Anything less makes no sense in a free society.