Fighting Words and Offensive Speech
Among the categories of speech the Court has ruled may be regulated is one called fighting words, words whose express purpose is to create a disturbance and incite violence in the person who hears the speech.46 However, the Court rarely upholds legislation designed to limit fighting words unless the law is written very carefully. Consequently, it has held that threatening and provocative language is protected unless it is likely to “produce a clear and present danger of serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”47 It has also ruled that offensive language, though not protected by the First Amendment, may occasionally contain a political message, in which case constitutional protection applies.48
fighting words speech intended to incite violence
These rulings have taken on modern-day significance in the wake of the political correctness movement that swept the country in the late 1980s and 1990s, especially on college campuses. Political correctness refers to an ideology, held primarily by some liberals, including some civil rights activists and feminists, that language shapes society in critical ways and, therefore, that racist, sexist, homophobic, or any other language that demeans any group of individuals should be silenced to minimize its social effects. An outgrowth of the political correctness movement is the adoption of speech codes on college campuses, banning speech that might be offensive to women or ethnic and other minorities. Critics of speech codes, and of political correctness in general, argue that such practices unfairly repress free speech, which should flourish on, of all places, college campuses. In 1989 and 1991, federal district court judges agreed, finding speech codes on two campuses, the University of Michigan and the University of Wisconsin, in violation of students’ First Amendment rights.49 Neither school appealed. The Supreme Court spoke on a related issue in 1992 when it struck down a Minnesota “hate crime law” that prohibited activities that “arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The Court held that it is unconstitutional to outlaw such broad categories of speech based on its content.50
political correctness the idea that language shapes behavior and therefore should be regulated to control its social effects
How much free speech do we need on our college campuses?
Freedom of the Press
The First Amendment covers not only freedom of speech but also freedom of the press. Many of the controversial issues we have already covered apply to both of these areas, but some problems are confronted exclusively, or primarily, by the press: the issue of prior restraint, libel restrictions, and the conflict between a free press and a fair trial.
Prior Restraint
Prior restraint, a restriction on the press before its message is actually published, was the primary target of the founders when they drew up the First Amendment. The Supreme Court has shared the founders’ concern that prior restraint is a particularly dangerous form of censorship and has almost never permitted it. Two classic judgments illustrate their view. In Near v. Minnesota, the Court held that a Minnesota law infringed on a newspaper publisher’s freedom of the press. Although an extreme emergency, such as war, might justify previous restraint on the press, wrote Justice Charles Evans Hughes, the purpose of the First Amendment is to limit it to those rare circumstances.51 Similarly and more recently, in New York Times Company v. United States, the Court prevented the Nixon administration from stopping the publication by the New York Times and the Washington Post of the Pentagon Papers, a “top-secret” document about U.S. involvement in Vietnam. The Court held that “security” is too vague a concept to be allowed to excuse the violation of the First Amendment. To grant such power to the president, it ruled, would be to run the risk of destroying the liberty that the government is trying to secure.52
prior restraint censorship of or punishment for the expression of ideas before the ideas are printed or spoken
Libel
Freedom of the press also collides with the issue of libel, the written defamation of character (verbal defamation is called slander). Obviously, it is crucial to the watchdog and information-providing roles of the press that journalists be able to speak freely about the character and actions of those in public service. At the same time, because careers and reputations are ruined easily by rumors and innuendoes, journalists ought to be required to “speak” responsibly. The Supreme Court addressed this issue in New York Times v. Sullivan, in which it ruled that public officials, as opposed to private individuals, when suing for libel, must show that a publication acted with “actual malice,” which means not that the paper had an evil intent but that it acted with “knowledge that [what it printed] was false or with reckless disregard for whether it was false or not.”53 Shortly thereafter, the Court extended the ruling to include public figures other than officials, including entertainment or sports celebrities, as well as people whose actions put them in a public position—such as a candidate running for office, or an author promoting her book.
libel the written defamation of character
Profiles in Citizenship Bill Maher
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Bill Maher is a big fan of the First Amendment. That’s because he says what few of us dare to say, what most of us dare not even think. The gasp of laughter that follows the comedian’s one-liners is not just shocked amusement; it’s shocked recognition that, uncomfortable, unflattering, and unpalatable as his observations are, they’re often right on target. Maher has made a career out of mocking the emperor’s anatomy, while most of us are still oohing and aahing over the splendor of his new clothes. Usually the First Amendment saves his bacon.
And sometimes it doesn’t. On September 17, 2001, he went on his ABC comedy show, Politically Incorrect, and said, about the suicide bombing of the World Trade Center: “We have been the cowards, lobbing cruise missiles from miles away. That’s cowardly. Staying in the airplane when it hits the building—say what you want about it, it’s not cowardly.” Advertisers balked, and Maher’s show was canceled.
He’s back now, with a cable show called Real Time with Bill Maher, where he continues to speak his mind. Still, there are limits. He says: “I can’t get up there every week and just rail about the environment and global warming and whatever is going on that I think is most important. But I push it as far as I can.”
On patriotism
“Well, it means being loyal to your country above other countries. And I am . . . . [But] it has to be put in context and also it has to be put side by side with a greater humanity . . . . Americans who say, ‘This is the greatest country in the world,’ without having any clue what goes on in any other countries, are just pulling it out of nowhere. There are many things that I’m proud of in this country. I’m proud of how my parents and other people stopped fascism and communism. I’m certainly proud of what we started in 1776. It was a new dawn of freedom and liberty in the world. But I’m not proud of slavery. I’m not proud of the genocide of the Indians. I’m not proud of much of what goes on today. So I still believe in the promise of America, but most of America looks at itself