Regulating Offensive Speech vs. Fighting Words

1. Regulating Offensive Speech vs. Fighting Words • Cantwell SCT overturned conviction of speaker who was doing no more than to persuade others as to his viewpoint – although his ideas were extremely offensive to others • ChaplinskySCT upheld “fighting words” conviction – Such words are low value speech – “those which by their very utterance inflict injury or have a direct tendency to cause a breach of the peace” • Court is attempting to draw careful line between the low-value category (which doesn’t attempt to communicate any valuable information but which acts more like an assault/punch in the nose) and high-value, but offensive ideas. • Problem: Chaplinskyrelied on an objective notion of fighting words: • What men of common intelligence would understand would be words likely to cause an average addressee to fight. • Drawbacks re this approach: • Arbitrary application due to discretion in arresting officer • Lack of notice as to what amounts to “fighting words”

2. Post-Chaplinsky Regulation of Fighting Words – Cohen, Gooding & Johnson • Post-Chaplinsky – government officials can punishfighting words only if they include: • Personal insult • Directed to an individual (identifiable group) • Face-to-face • Likely (& intended) to cause an immediate breach of the peace • How do these further Cantwell’s primary goal of protecting expression of offensive ideas while allowing punishment of abusive epithets?

3. Post-Chaplinsky Doctrine & Emotional Distress • To what extent is Chaplinsky’s recognition that gov’t could regulate based on possible emotional harm gone after post-Chaplinsky cases? Is that a good or bad thing? • State v. Meadors, 2012 WL 309175 (Kan. App. 2012) – husband verbally abused wife (serious profanities among other things) when she was delivering the children for visitation. Wife and children were frightened, called police. H abused police too. H eventually arrested for disorderly conduct under statute Kansas SCT has interpreted this statute as allowing punishment only of fighting words. • Were D’s words fighting words as post-Chaplinsky cases define them? Is that a bad or good thing? How does Meador Court deal with this? How should we deal with this kind of verbal abuse?

4. More offensive speech questions: Cohen v. California & the regulation of profanity • Cohen makes clear that state cannot act to cleanse discourse by punishing public use of profanity. • Why can’t the state act to civilize discourse by regulating the public use profanity even if it isn’t used in situations amounting to fighting words? • What are the arguments for and against such regulation of profanity?

5. Still more on regulation of offensive speech: Cohen & the captive audience • “The mere presumed presence of unwitting listeners or viewers does not serve automatically to justify curtailing all speech capable of giving offense. The government may properly act . . . to prohibit intrusion into the privacy of the homeof unwelcome views and ideas which cannot be totally banned from the public dialogue, but we have at the same time consistently stressed that ‘we are often ‘captives' outside the sanctuary of the home and subject to objectionable speech.’ The ability of government, . . . to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner.” • Note the questions this raises: • Does the Court mean to protect all offensive speech in public places? Only certain public places? • When and how are your privacy interests invaded in an essentially intolerable manner?