Since the first freedom of speech case was brought to the Supreme Court in 1919, the debate over whether it is an absolute or qualified right has persisted. As the Court attempts to capture the meaning of the First Amendment and its free speech clause, they create many tests and qualifications for the protection of the First Amendment. Many of the discussions revolving around free speech exceptions concern, at least in part, hateful and offensive speech. The paradox that plagues this argument is that speech cannot be qualified without encroaching on some rights, yet speech cannot be absolute without threatening the peace that rights are intended to protect.
Chaplinsky v. New Hampshire, Cohen v. California, and FCC v. Pacifica Foundation, among others, highlight the major exceptions that the Court considers in an offensive speech case. Two of the above three cases granted exceptions to the protection of free speech, allowing regulatory statutes to be upheld. On the other hand, Snyder v. Phelps, Virginia v. Black, and R.A.V. v. City of St. Paul, Minnesota, represent the Court’s opinion regarding hate speech which allowed for zero exceptions to the First Amendment.
Support for the argument that free speech should be an absolute right can be easily found in the either the slippery-slope argument or the heckler’s veto, among others. These two notions that exceptions will undoubtedly lead to the absence of meaningful free speech are not uncommon nor are they improbable. Matsuda and Lawrence (1993), state that the theory that the freedom of speech is an absolute right is “ahistorical and acontextual” (p. 134). However, the necessity for an absolute interpretation of the freedom of speech is epitomized through the history of the United States.
Chaplinsky v. New Hampshire
A member of the Jehovah’s Witnesses in New Hampshire was convicted for violating offensive speech laws. The law stated that “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place” (Chaplinsky v. New Hampshire, 1942, p. 569). Chaplinsky used many offensive words including racketeer and fascist in a public crowd that had gathered due to the denouncements that Chaplinsky was making against all religions. He was arrested for this language under the New Hampshire law stated above. Chaplinsky challenged his conviction, stating that it violated “freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite” as well as that it was improperly applied through the Fourteenth Amendment (Chaplinsky v. New Hampshire, 1942, p. 570).
First, the Court acknowledges a challenge based on free speech, though they do not accept the challenges of free press or worship. As for the vagueness of the statute, the majority writes that, for a criminal act, the statute is not too vague and the statute was narrowly tailored (Chaplinsky v. New Hampshire, 1942, p. 574). The verbal acts described in the statute are limited and specific enough for a criminal statute. The statute itself passes the test, clearly falling in line with the fighting words exemption to the First Amendment. Justice Murphy also defends this exemption by re-stating that the First Amendment is not and has never been understood to be an absolute freedom regardless of time, place, and manner.
Secondly, the Court answers the question of whether or not the statute was properly applied. The Court determined that it was, as Chaplinsky’s speech was already starting to cause a breach of peace and the words that he was using were very likely to provoke members of the audience. The Court determined that the statute was properly applied in accordance with the Fourteenth Amendment and there was no First Amendment violation (Chaplinsky v. New Hampshire, 1942, p. 574). The fighting words exemption allowed this statute to withstand the Court’s assessment of the offensive speech. Chaplinsky did not argue that the statute violated the overbreadth doctrine, though it appears that the statute may run the risk of inhibiting the protected speech of others while prohibiting the dangerous speech of some.
Cohen v. California
In Cohen v. California, decided in 1971, the Supreme Court ruled that certain speech cannot be made criminal for the simple reason that it may possibly offend passersby. Cohen v. California (1971) involved the arrest and imprisonment of an individual for wearing a jacket that displayed an expletive in a courthouse. The man was arrested under California Penal Code § 415 which targets offensive conduct for disturbing the peace and outlaws such conduct when it is malicious or purposefully disturbs others (Cohen v. California, 1971, p. 16). Cohen’s intention from wearing the jacket in public was to express his negative opinion of the draft, a right that is protected by the First Amendment. However, the Court questions whether or not his particular expression of this view is protected by the First Amendment.
First, the Court establishes that this case is one of offensive speech, rather than a case of obscenity or fighting words, where First Amendment exceptions have been established. Obscenity, according to the majority opinion, “must be, in some significant way, erotic” (Cohen v. California, 1971, p. 20). There was no part of Cohen’s expression that could have been construed in such a way by the viewer of his jacket. Fighting words must be likely to incite a violent reaction or cause hostility among others. Cohen’s expression failed both of these tests, allowing the Court to rule out the possibility of these exemptions to the protection of the First Amendment.
Secondly, the conduct in question did not invade the privacy of any individuals by thrusting this unwanted opinion upon them in their own home. This expression was avoidable by looking away or leaving the area, unlike the conduct in Federal Communications Commission v. Pacifica Foundation, where broadcast radio can be regulated due to the presence of this expression in the privacy of one’s own home (1978, p. 748). The viewer in Cohen was not categorized as part of a “captive audience,” therefore his expression was not qualified for an exemption. It is not within the power of government to regulate the expression of others in public to protect the interests of some, unless a constitutional provision is otherwise violated by the conduct in question. “Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections” (Cohen v. California, 1971, p. 21).
Finally, the breach of peace principle that the state of California is implementing does not show any means of distinguishing one offensive word from another. Moreover, the offensiveness of some words varies quite dramatically between individuals. As stated in the majority opinion, speech cannot be regulated so that it will “cleanse public debate to the point where it is grammatically palatable to the most squeamish among us” (Cohen v. California, 1971, p. 25). Due to the difficulty of distinguishing certain offensive acts from others, any regulation would have to be strict and the strict regulation of this speech is a violation of the First Amendment.
It is because of the reasons discussed that the Supreme Court reversed the decision of the Court of Appeals and ruled against the state of California’s Penal Code § 415. The State lacked a compelling interest for revoking the rights of Cohen to exercise his freedom of expression. The Supreme Court articulated the fear that government cannot “forbid particular words without also running a substantial risk of suppressing ideas in the process” (Cohen V. California, 1971, p. 26). The unpopularity of a certain view or the expression of it is not a good enough reason to risk the right to express any minority views.
Federal Communications Commission (FCC) v. Pacifica Foundation et al.
Justice Stevens, writing the opinion of the Court, further analyzes the meaning of offensive speech and how the First Amendment applies to it. In FCC v. Pacifica, the comedian George Carlin delivered a monologue on broadcast radio that included seven “filthy words” (FCC v. Pacifica Foundation, 1978, p. 730). This monologue resulted in a complaint being filed against the Pacifica Foundation, who broadcast the monologue, and the FCC filed this complaint in their records. The Pacifica Foundation challenged this mark on their record on the basis of free speech.
The nature of this broadcast requires that the Court decide whether or not the First Amendment “prohibits all governmental regulation that depends on the content of speech” (FCC v. Pacifica Foundation, 1979, p. 744). The Court seeks to define this indecent monologue as either obscene or offensive speech. The monologue inherently meets the requirements of being “speech” under the First Amendment. Therefore, the only question that remains is whether or not the First Amendment grants the FCC the authority to punish Pacifica for broadcasting the indecent content.
While the monologue does not fall under any of the three main determined exemptions of the First Amendment, the Court still allows the regulation because of the context and content of the speech. The judgement of context and content of the speech comes from time, place, and manner restrictions that are often placed on speech of this kind. According to the majority opinion, speech is not protected by the First Amendment if it “will bring about the substantive evils that Congress has a right to prevent” (FCC v. Pacifica Foundation, 1978, p. 745).