Nahmod Law

Archive for the ‘First Amendment’ Category

Freedom of Speech (6): Fighting Words

This post answers three questions.

1. What are fighting words?

2. Are fighting words protected by the First Amendment?

3. If not, why not?

What are fighting words?

It is fair to say that the category of fighting words has been significantly limited in the years since Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the seminal fighting words case discussed below. As I read the subsequent cases, fighting words are in-your-face insults that can be based on race, ethnic origin, religion or sex but don’t necessarily have to be. For example, going right up to someone and yelling a profane insult about that person’s mother may constitute fighting words. But carrying a banner across the street from that person with the same message does not constitute fighting words that can be punished.

Fighting words are not protected by the First Amendment

The Supreme Court explained it this way in 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 the 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. … [S]uch 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.

Why are fighting words not protected?

The Court’s answer in Chaplinsky is several-fold.

First, there is an historical basis, according to the Court, namely, that it has never been thought otherwise. But this is not entirely satisfactory because the Court also lists the lewd and the profane, both of which (so long as not obscene) are now protected by the First Amendment. In addition, the Court lists the libelous, but this category has now been significantly limited by New York Times v. Sullivan, 376 U.S. 254 (1964), which constitutionalized defamation as it affects not only public officials and public figures but also private persons where the speech is on an issue of public concern.

Second, the Court suggests that fighting words tend to incite an immediate breach of the peace, a justification reminiscent of the clear and present danger test of Holmes and Brandeis. But this too is not a satisfactory explanation: where fighting words are present, there is no inquiry into whether in fact there is a clear and present danger. Perhaps the answer is that one’s violent reaction to fighting words is immediate and instinctive; there is no time for counterspeech. [Note, though, that one who responds violently to fighting words is not immune from criminal punishment for his conduct]

Third, the Court engages in what has been called categorical balancing. Namely, it balances the free speech interest in, say, fighting words, against the social interest in order and morality, and finds that as a general matter, the latter trumps the free speech interest. Interestingly, the Court thereby engages in content discrimination which is otherwise not permitted to governments acting in a regulatory role. Moreover, categorical balancing appears inconsistent with the marketplace of ideas rationale.

The exclusion of fighting words and the other categories from First Amendment protection (or coverage) reflects what has been called the “two-tier theory” of the First Amendment, a theory that is based on the content of speech.

 

(For much more on the First Amendment search “free speech” on this blog)

I invite you to follow me on Twitter: @NahmodLaw.

 

 

Written by snahmod

September 11, 2017 at 1:31 pm

Political Protests and the First Amendment (Video)

On March 2, 2017, IIT Chicago-Kent College of Law presented a two hour program for both non-lawyers and lawyers on political protests and free speech. This program was prompted by the suddenly developing political protests directed at the President’s restrictive travel ban and his proposed actions against immigrants.

I spoke for the first half hour and provided a First Amendment overview (what I termed a “primer”) as well as concrete suggestions for political protestors.

In the second and third half-hours two highly regarded Chicago attorneys, Molly Armour and Ed Mullen, discussed their experiences with political protests and law enforcement. They also offered advice to protestors.

The final half hour, which was quite dynamic, addressed questions from a very engaged audience.

If you are interested in the dos and don’ts of political protest, then this is the video for you. I recommend it highly.

Here is the link: https://kentlaw.hosted.panopto.com/Panopto/Pages/Viewer.aspx?id=fc5b4a7c-841e-4db0-a43f-a9d7fad63f6d

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

March 19, 2017 at 9:47 pm

Posted in First Amendment

My Lecture on the Supreme Court, Free Speech and Hate Speech (Audio)

One of my most popular posts is Know Your Constitution (5): Free Speech and Hate Speech, which was published on December 4, 2013, and can be found here: https://nahmodlaw.com/2013/12/04/know-your-constitution-5-free-speech-and-hate-speech/

More recently, I was invited to lecture on this topic to a general audience at Moriah Congregation in Deerfield, IL, on November 30, 2016. The attentive and engaged audience consisted of adults attending a continuing series of lectures on Henry Ford and anti-Semitism, with my lecture coming near the end of the series.

Following a gracious introduction by Bruce Ogron, an attorney and graduate of IIT Chicago-Kent College of Law, I spoke for 45 minutes and then answered some very good questions for another 15 minutes. I enjoyed the experience immensely.

I spoke first about common erroneous assumptions about the Supreme Court. I then moved into the mainstream theories or purposes of free speech, followed by three important considerations in free speech case law, and I concluded with a discussion of hate speech.

I am very pleased to offer this audio of my lecture.

View or Download file via Google Drive, open on Panopto or listen here (no video):

Written by snahmod

December 14, 2016 at 2:35 pm

My First Amendment Class on Access to the Press and to Information (Audio)

I audio-recorded a 1 1/2 hour makeup class in my First Amendment course. This class took place on November 18, 2015, and dealt with freedom of the press, access to the press and press/public access to information.

This class began with my brief review of the preceding class that addressed the First Amendment as a shield for the press, including Cohen, Branzburg and Zurcher.

I then got right into the cases that address the First Amendment as a sword, including Red Lion, Miami HeraldRichmond Newspapers and Houchins.

I hope you find it of interest.

Check it out below.

listen online:

  • or download file here

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Written by snahmod

December 28, 2015 at 10:57 am

Posted in First Amendment

The Confederate Flag and the Walker Case: A Video

Several weeks ago the Chicago-Kent Federalist Society sponsored a discussion of the Confederate Flag. John Kunich (University of North Carolina at Charlotte) and I spoke about the symbolism of the Confederate Flag.

In particular I discussed the Supreme Court’s recent  important First Amendment Confederate Flag/license plate decision in Walker v. Texas Div., Sons of Confederate Veterans, Inc. (No. 14-144, 6-18-15). I also addressed government speech and forum analysis.

The program lasted for 50 minutes, and I was the second speaker. There was no followup discussion.

Here is the video of that program. I hope you find it of interest.

 

I invite you to follow me on Twitter @NahmodLaw.

 

Written by snahmod

November 24, 2015 at 9:59 am

Posted in First Amendment

All My First Amendment Posts to 10-12-15

This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law,  were also posted today.

Please search within this post for any cases, topics and the like that you are interested in.

PART III: FIRST AMENDMENT

Freedom of Speech (1): Three Rationales

Freedom of Speech (2): Content, Medium and Forum

Freedom of Speech (3): The Clear and Present Danger Years

Freedom of Speech (4): Internet Threats and Elonis v. United States

Public Employee Free Speech: The New Regime

From Buckley to Citizens United (Part One of Two)

From Buckley to Citizens United (Part Two of Two)

Government Speech and Justice Souter (1): Introduction

Government Speech and Justice Souter (2): Rust v. Sullivan

Government Speech and Justice Souter (3): Rosenberger v. Rectors of the University of Virginia

Government Speech and Justice Souter (4): Glickman and Finley

Government Speech and Justice Souter (5): Univ. of Wisconsin v. Southworth

Government Speech and Justice Souter (6): Johanns v. Livestock Marketing Association

Government Speech and Justice Souter (7): Garcetti v. Ceballos

Government Speech and Justice Souter (8): Pleasant Grove City v. Summum

Government Speech and Justice Souter (9): A Short Coda

Animal Cruelty, Crush Videos and U.S. v. Stevens (Video)

Borough of Duryea v. Guarnieri: New Supreme Court Section 1983 Public Employee Petition Clause Case

Certiorari Granted in Reichle v. Howards: A First Amendment Retaliatory Arrest Case

New Supreme Court Decision: Reichle v. Howards and First Amendment Retaliatory Arrests

First Amendment Retaliatory Arrest Decisions After Reichle

New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case

New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin

Cert Granted in New Public Employee Free Speech Case: Lane v. Franks

Law Professors’ Amicus Brief in Lane v. Franks

A Short Video on Lane v. Franks

Lane v. Franks: New Supreme Court Public Employee Free Speech Decision

The “Ground Zero Mosque”: A Discussion (Video)

The Religion Clauses: ‘Tis the Season

New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School

Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause

A Video Presentation on Town of Greece v. Galloway

Remarks on the Establishment Clause and Town of Greece

A Video: The Religion Clauses, Town of Greece and Hobby Lobby

Written by snahmod

October 12, 2015 at 2:52 pm

Anti-SLAPP Statutes and State-Law Claims: Is a City Protected?

Anti-SLAPP Statutes: Background

I blogged some time ago about anti-SLAPP statutes and section 1983 both in state courts and federal courts. Readers will want to consult both my post of July 23, 2010, and my post of April 27, 2011, for those discussions and relevant background.

SLAPP (Strategic Litigation Against Public Participation) lawsuit is one that is filed by the plaintiff in order to chill the exercise of the defendant’s First Amendment right to petition the government for redress of grievances or for otherwise engaging in speech.

In contrast, an anti-SLAPP statute provides procedural and substantive protection for the defendant in cases where the plaintiff’s lawsuit is grounded on a good faith communication in furtherance of the right to petition or free speech.

Consider the following Washington Supreme Court decision holding that a city was not protected by an anti-SLAPP statute in connection with state-law claims (not section 1983 claims).

Henne v. City of Yakima, No. 89674-7 (Wash. Jan. 22, 2015).

In Henne, a former police officer sued the City of Yakima under state law, alleging that it had created a hostile work environment because of the way it handled an investigation into complaints against the officer. The city moved to dismiss on the ground that it was protected by Washington State’s anti-SLAPP statue, Revised Code of Washington §4.24.525.

Ultimately, the Washington Supreme Court, in opinion by Justice Sheryl Gordon McCloud, ruled against the city on the ground that the plaintiff’s state-law lawsuit was based on communications made by other officers to the city and not communications made by the city itself It declared:

“We hold that a governmental entity like Yakima cannot take advantage of the anti-SLAPP statutes at least where, as here, the challenged lawsuit is not based on the government’s own communicative activity.”

The Washington Supreme Court expressly did not decide whether a city could ever be protected by the anti-SLAPP statute. However, it observed that the statute “protects the ‘right of free speech’ and ‘the constitutional right of petition,’ (RCW 4.24.525(2)), rights that the constitution grants to individuals against the government not to the government against individuals.” (emphasis added).

Justice Mary E. Fairhurst, joined by Justices Charles W. Johnson and Mary I. Yu. Fairhurst, wrote a separate opinion arguing that cities should be able to use the anti-SLAPP statute, but concurred with the majority because she said the underlying suit wasn’t a SLAPP suit.

Comments

1. The unresolved issue in Henne is one of statutory interpretation: does the Washington State anti-SLAPP statute, which refers to “persons,” cover cities?

2. The deeper conceptual issue is whether cities have any petition or free speech rights under the United States Constitution. See my post on government speech of March 28, 2011, and the immediately preceding posts on Justice Souter’s views of government speech.

3. Whatever the answer to the conceptual question, a state can protect cities in an anti-SLAPP statute even if they do not have such petition or free speech rights.

2. If a particular anti-SLAPP statute is interpreted to protect cities, then that, of course, has practical implications for its application to section 1983 claims as well, and not just state-law claims.

I invite you to follow me on Twitter: @NahmodLaw

Written by snahmod

February 9, 2015 at 2:02 pm