Thursday, May 07, 2015

Chaplinsky Vs. New Hampshire: The Real Story Behind The "Fighting Words" Doctrine As Limit To Freedom of Speech

The other day, Chris Cuomo declared Pamela Geller's Mohammed Cartoon Contest to be a violation of the "Fighting Words Doctrine", The "Fighting Words Doctrine is a limitation set against the Freedom of Speech by a Supreme Court case called Chaplinsky vs. New Hampshire.

Frankly, I don't hear the "Fighting Words Doctrine" being resorted to as a legitimate limit on Freedom of Speech by any, other than Chris Cuomo. However, if it were, I wonder if anyone would take it seriously if they knew the real story.

First, the story as it is usually told:
In late November 1941, Walter Chaplinsky, a Jehovah's Witness, was using the public sidewalk as a pulpit in downtown Rochester, passing out pamphlets and calling organized religion a "racket." 
After a large crowd had begun blocking the roads and generally causing a scene, a police officer removed Chaplinsky to take him to police headquarters. 
Upon seeing the town marshal (who had returned to the scene after warning Chaplinsky earlier to keep it down and avoid causing a commotion), Chaplinsky attacked the marshal verbally. He was then arrested. 
The complaint against Chaplinsky stated that he shouted: "You are a God-damned racketeer" and "a damned Fascist". 
Chaplinsky admitted that he said the words charged in the complaint, with the exception of the name of the deity. For this, he was charged and convicted under a New Hampshire statute preventing intentionally offensive speech being directed at others in a public place. Under New Hampshire's Offensive Conduct law (chap. 378, para. 2 of the NH. Public Laws) it is 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." 
Chaplinsky appealed the fine he was assessed, claiming that the law was "vague" and that it infringed upon his First Amendment and Fourteenth Amendment rights to free speech.
Even this story, by itself, is offensive, idiotic and downright absurd, given the fact that the First Amendment declares, simply, that "Congress shall make no law ... abridging the Freedom of Speech."


And yet, somehow, Chaplinsky was arrested for calling a Policeman a "racketeer" and a "fascist". And then, the Supreme Court decided that Walter Chaplinsky had violated his own Constitutional Right to Free Speech, by using "fighting words".

Additionally, the charge was that he used these words "in a public place." Somehow the fact that he chose to utter words which were offensive to a policeman, in a public place, was considered "incitement."

Now, I could understand if the Policeman had sued Chaplinsky for Slander. After all, the words "Racketeer" and "fascist" have specific meanings, and I don't believe Chaplinsky could have proven in a court of law that his words were justified.

But unless a person wants to pursue the Slander route, it is completely absurd, and absolutely un-Constitutional to charge a person with incitement, for simply calling another person a name, which has a specific meaning, unless one wants to prove that he was wrong in the meaning he assigned to oneself with the use of those words.

Having said all that, now let's get the rest of the story. For as we read what really happened - what really led up to the arrest of Mr. Chaplinsky - you will not believe this could have happened in America. The truth of the event will totally pull the rug out from underneath the whole notion of "incitement", or "fighting words", as it pertains to the Chaplinsky case.

Here's what really happened:
While preaching, Chaplinsky was surrounded by men who mocked Jehovah's Witnesses members' objections to saluting the flag. 
One man attempted to hit Chaplinsky in full view of the town marshal, who warned Chaplinsky that he was in danger but did not arrest his assailant. 
After the marshal left, another man produced a flagpole and attempted to impale Chaplinsky; while Chaplinsky was pinned against a car by the pole, other members of the crowd struck him. A police officer arrived and, rather than dispersing the crowd, took Chaplinsky into custody. 
En route to the station, the officer, as well as members of the crowd, insulted Chaplinsky and his religion. Chaplinsky responded by calling the town marshal, who had returned to assist the officer, a "damn fascist and a racketeer" and was arrested for the use of offensive language in public.
In other words, Mr. Chaplinsky, who was, very reasonably in fear for his life, became enraged, and started taking out his fear, anger, and humiliation on the Marshall - who would not arrest his attackers, but instead, like a coward, chose to arrest the lone person who was not committing acts of violence.

Actually, this sounds almost exactly like what is happening to Pamela Geller, Bosch Fawstin, and Robert Spencer, doesn't it?

How could such a thing happen in America? How could a man be arrested for using words, when other's are committing acts of violence against him?

How could the Supreme Court have held up his conviction on "Incitement", creating a "Fighting Words" exception to the First Amendment, when the man did not fight, or even fight back against those who did fight against him?

How could such a thing happen in American History, only to be trotted out once again, in the 21st century, by the very same kind of rogues, to be used to slander and threaten those who would truly stand for our Freedoms?

It makes you feel ashamed to live in a land where Justice is a game.

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