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The Dangers of Freedom of Expression

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At this, the marshal led Chaplinsky away. As he did, though, Chaplinsky denounced the marshal as a “goddam fascist” and a “damned racketeer.” For that, he was charged with violating a New Hampshire law forbidding “any offensive, derisive or annoying word to any other person who is lawfully in any street or public place.” (In court, Chaplinsky admitted to damning the marshal but denied that he’d prefaced it with “god.” Violating a law was one thing, taking the Lord’s name in vain quite another.)

Convicted, Chaplinsky appealed and the case went all the way to the United States Supreme Court. The arrest that day in New Hampshire hadn’t occurred in a vacuum: at its heart, this was a situation in which a man of suspect patriotism had denounced an officer of the law as a fascist in the middle of a war against Nazism. In the years leading up to the incident, the Jehovah’s Witnesses had become a widely persecuted religious sect, partly for their denunciation of other Christian denominations but largely for their refusal to swear allegiance to secular government. In 1935, the movement’s leadership had declared saluting the flag a form of idolatry, an edict that transformed an obscure sect into a widely known pariah. The public’s contempt took on a sharper, more paranoid edge during the Second World War. Amid the patriotic fervor, Jehovah’s Witnesses were denounced as cowards or traitors. Physical attacks upon believers were not uncommon. Their aversion to overt rituals of patriotism led some to suspect that they were secretly aligned with the Nazis. (That was hardly the case. In Germany, refusal to salute the Nazi flag led to Jehovah’s Witnesses being sent to concentration camps, where some died rather than renounce their religion.)

By the time Walter Chaplinsky stepped onto the corner in Rochester, the Jehovah’s Witnesses were at the center of a contentious dispute over the meanings of free speech and freedom of religion. Joseph Rutherford, the president of the Watchtower Society (and a lawyer) filed suit after suit against infringements on the group’s First Amendment rights—despite his belief that secular government inherently ran counter to God’s law. At least some of them centered around the Witnesses’ often strident denunciations of other religious traditions—and the contempt and violence that members of those traditions inflicted upon them in return. For Americans at the time, the cases—much like the contemporary controversy over “Innocence of Muslims”—were a reminder of the fluid boundaries of our liberties, that an open society must not only protect rights but also balance them.

In deciding the case of Chaplinsky v. New Hampshire, the Supreme Court considered the question of where the limits on free speech fell. Writing for the majority, Justice Frank Murphy argued that

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.

“Fighting” words, the Justice said, conveyed no ideas and contained no social value. While the Court took up the issue of the verbal assault upon the officer, the initial disturbance stemmed from Chaplinsky’s inflammatory words about organized religion. He’d called the marshal a “racketeer,” but he’d also called other faith traditions a “racket.” Were those also fighting words? And if they could indeed “inflict injury,” might they not infringe upon the religious freedoms of his targets? Those same concerns had scarcely registered when dozens of Jehovah’s Witnesses had been physically injured for their religious beliefs. The decision left open the suggestion that the violence they had suffered had been, on some level, a consequence of their own combustible rhetoric. The Court struck an awkward balance between freedoms of speech and religion, one that in this instance disadvantaged a small but visible and persecuted sect.

In the ensuing years, the courts have largely stepped away from the idea that certain speech rationalizes violence, most notably in the 1977 decision upholding the right of members of the American Nazi Party to hold a march in Skokie, Illinois. In 1989 and 1991, the court struck down hate-speech prohibitions enacted by the University of Michigan and University of Wisconsin, respectively.

Still, the Chaplinsky case highlighted the contradictions inherent in the First Amendment and the sometimes duelling freedoms it guarantees. The case is worth recalling amid the chaotic protests targeting American embassies across the Middle East, an explosive response to an inflammatory expression of speech. The immediate controversy over the official statements centered on whether the Obama Administration had appeased angry Muslims at the expense of the defending the First Amendment. But the real question is not whether the Administration was committed to defending the Amendment—it’s which of its guarantees it decided to prioritize. The statements by both President Obama and Hillary Clinton—along with the initial statement from the Embassy in Cairo that stoked Mitt Romney’s ire—share a common theme in denouncing religious intolerance. In so doing, they simply emphasized the free exercise of religion more heavily than free speech. The U.S. of Chaplinsky’s day had its priorities; today, with troops still in Afghanistan and elsewhere, and with the final results of the Arab Spring still unclear, the Administration has different concerns to consider.

Hateful speech doesn’t justify violence, but it has never ceased to inspire it. The Internet has collapsed the distinctions between domestic politics and international affairs, ensuring that these messy questions of speech and religion are now hashed out in full view of the world, meaning that local bigotry can have global consequences. The chaotic tableau of violence we’re witnessing may seem inscrutably foreign, but there is a none-too-distant point in our past when Americans, immersed in turmoil and insecure about the future, thought religious insult should be handled much the same way.


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