How The Supreme Court Made It Easier To Smear People As Racists And Scream The F-Word In Public

How The Supreme Court Made It Easier To Smear People As Racists And Scream The F-Word In Public

Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.
Jonathan Lange
By

For the first time since Thomas Jefferson, Speaker Nancy Pelosi invited nonsensical and irrelevant ad hominem attacks to be both spoken on the floor of the House and to be entered into the permanent congressional record. Sadly, her invitation was eagerly accepted. Freshman Rep. Cori Bush, D-Mo., called President Trump “a white supremacist president,” and “white supremacist-in-chief,” while Rep. Rashida Tlaib, D-Mich., called him “racist-in-chief.”

How did we get to this disgraceful state of affairs? The answer goes back to 1942.

Walter Chaplinsky was a Jehovah’s Witness street preacher holding forth in downtown Rochester, New Hampshire. His message for the day was a general screed against organized religion. As the streets were blocked and the turmoil grew, authorities arrived to restore order. At this point, Chaplinsky turned his ire to the town marshal saying, “You are a G-d d–ned racketeer,” and “a d–ned fascist.”

Chapter 378, paragraph 2 of the New Hampshire Public Laws made it illegal for anyone to address “any offensive, derisive or annoying word to anyone who is lawfully in any street or public place … or to call him by an offensive or derisive name.” So Chaplinsky was arrested and cited for breaking this law. He contested New Hampshire’s public obscenity law, claiming that it violated the First Amendment.

Eventually, his case worked its way to the U.S. Supreme Court, where Justice Frank Murphy authored the majority opinion against Chaplinsky:

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.

This landmark decision established the “fighting words doctrine” on Mar. 9, 1942. It’s one thing to express an idea. It’s quite another thing to do so using words that are not intended to serve “as a step to truth,” but “to inflict injury or to incite an immediate breach of the peace.” The First Amendment protects the expression of all ideas. It does not protect the public utterance of all words.

Overturning Common Sense and Common Decency

Indeed, public obscenity laws existed harmoniously with the First Amendment for more than 150 years before the Supreme Court even thought it necessary to formulate a doctrine to explain why. It doesn’t require a linguistic scholar to know the difference between lewd, obscene, profane, libelous, and insulting words on the one hand, and words that convey thoughtful content on the other.

“Fighting words” are ad hominem. They attack the person without addressing the argument. We learn this in the schoolyard from the earliest days. When the bully is called out for cutting in line, he is not likely to offer a reason why it was justified. He is more likely to say, “shut up, stupid.” Whether you are stupid or not, it remains wrong to cut in line. His response simply makes no sense.

It was so obvious to the Supreme Court that the prohibition and punishment of fighting words had “never been thought to raise any constitutional problem.” Their landmark decision stood until America lost its common sense.

On April 26, 1968, Paul Cohen was arrested in a corridor of the Los Angeles Courthouse for wearing a jacket that said, “F— the Draft.” Like Chaplinsky, he contested California’s offensive conduct law on First Amendment grounds. Cohen was convicted according to California Penal Code. This conviction was upheld on appeal and denied review by the California Supreme Court. But the U.S. Supreme Court granted a writ of certiorari.

Oral arguments began on Feb. 22, 1971, with Chief Justice Warren Burger instructing Cohen’s lawyer, Melville Nimmer, that the offensive word in question need not be uttered in the hallowed halls of the Supreme Court. Seconds later, in his opening argument, Nimmer said, “What this young man did was to walk through a courthouse corridor wearing a jacket on which were inscribed the words, ‘F— the Draft.’” Presumably, this was the first time in history that such a vile word was uttered in that setting.

For his open defiance of the chief justice, Nimmer was not cited for contempt of court. Rather, he walked away with a 5-4 ruling that overturned 180 years of First Amendment jurisprudence. As Justice John Harlan famously wrote for the majority: “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”

While Murphy saw an objective “well defined” difference between the obscene and the noble, Harlan cast it into the realm of the purely subjective. Similarly, the Chaplinsky ruling recognized that ad hominem arguments (fighting words) “are no essential part of any exposition of ideas.” The Warren court, on the other hand, used the First Amendment to sacralize them.

This ruling did unleashed a flood of obscenities and verbal injuries on the unsuspecting public. It was not that Americans petitioned their legislators to permit lewd, obscene, profane, libelous, and insulting words to become part of the public discourse. It happened, rather, because five men in black robes lost their common sense.

Ripple Effects of the Warren Court

Were this the only sad consequence of Cohen v. California, it would be bad enough. But things have devolved further still. In 1977, Cohen was cited as a reason to permit Nazis to chant Jewish insults and carry the swastika through Skokie, Illinois — a community of Holocaust survivors.

In 1978, the Federal Communications Commission lost its ability to keep obscenities off the air; and in 1986 public schools lost their authority to prevent students from screaming “F— you,” in the halls of education. In 1992 the court unanimously struck down long-standing prohibitions against the Ku Klux Klan’s cross-burning threats.

Beginning in the mid-’90s, the advent of so-called “hate speech laws” closed the circle. Now certain ideas cannot be expressed without public penalty. Florists, bakers, clerks, and printers have been devastated by lost business, government fines, and legal costs just for expressing the idea that the words “male” and “female” are not interchangeable. Meanwhile, the law permits them to be assailed with nonsensical words like, “hater,” “bigot,” and “Nazi.”

Such words do not serve as a “step to the truth.” Rather, they are meant to insult and incite economic and social violence against their targets.

It’s been a half-century since the Warren court poisoned popular discourse, there yet remain public places that prohibit the ad hominem and the obscene. For instance, rules in the U.S. House of Representatives dating back to Thomas Jefferson require members to “Avoid characterizing another Member’s personal intent or motives and discussing personalities,” and to “Refrain from speaking disrespectfully of the Speaker, other Members, the President or Vice President.”

The Sullying of Our Hallowed Congress

Unfortunately, however, those very rules are now under assault. The House Committee on Rules met on Jan. 12, 2021, and adopted an ad hoc rule change providing “that the prohibition against personality in debate with respect to references to the President shall not apply during consideration of H. Res. 21 or any special order of business providing for the consideration of H. Res. 24.”

Thus, rules against ad hominem attacks on President Donald J. Trump were suspended during floor debates on Vice President Pence’s invocation of the 25 Amendment (H. Res. 21), and the motion to impeach President Trump (H. Res. 24).

Thanks to Pelosi, the language of the school-yard bully has now entered our highest deliberative body. As Cohen led to the cancel culture in the public square, so name-calling on the House floor led immediately to the suppression of unfavored ideas in Congress. Within hours, eight senators and 139 representatives who had followed congressional decorum in calling for an investigation of election fraud suddenly found themselves threatened with censure and expulsion merely for expressing the idea.

In 1942, Justice Murphy asserted, as a matter of timeless common sense, that the First Amendment protects the expression and defense of every idea as a valuable step towards discovering the truth. Now, only 80 years later, the case is reversed. Nonsensical, vile, and intentionally injurious words are fully protected speech while the expression of certain ideas — even in the kindest possible terms — is strictly forbidden. Instead of protecting true free speech, we’ve crushed the speech that matters most: the articulation and testing of the truth.

Jonathan G. Lange is a pastor of the Lutheran Church – Missouri Synod. He has raised his family in Wyoming for two decades, serving parishes in Evanston and Kemmerer. He is a leader of the Wyoming Pastors Network. Follow his blog at OnlyHuman-JL.blogspot.com.

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