Fun_People Archive
22 Nov
The Supremes and the "motherfucker trilogy".

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From: Peter Langston <psl>
Date: Mon, 22 Nov 99 13:43:21 -0800
To: Fun_People
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Subject: The Supremes and the "motherfucker trilogy".

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From: Jon Berger <jberger@monitor.net>

On Wed, 17 Nov 1999, David Brower wrote:

> Gee, having read the history, I can certainly see why
> an attempt was made to chill the guy down.  The First
> Amendment issues are interesting -- I think the analogy
> used by those in favor of the restraining order is that
> the guy is using "fighting words".  The free-speechers,
> rightly so, won't go along with that until there is a
> more definitive ruling from someone other than a local
> judge.  Interesting case.

If their theory is fighting words, they're going to go down in flames.

There is, technically, a doctrine that "fighting words," i.e. "those which
by their very utterance inflict injury or tend to incite an immediate breach
of the peace," may be prohibited by the government.  This principle was
announced back in 1942, in a case called Chaplinsky v. New Hampshire.  Mr.
Chaplinsky, who had been standing on a street corner haranguing a crowd with
some sort of anti-religious rant, was led away by a cop, and Chaplinsky
called the cop "a God-damned racketeer and a fascist."  He was arrested and
convicted under a New Hampshire law that prohibited the use of "any
offensive, derisive, or annoying word to any other person in a public
place."  (New Hampshire apparently prizes politeness, or did in the 40s.)
The U.S. Supremes ultimately upheld the conviction, on the basis that the
ordinance prohibited only "fighting words," and that's ok.

However, the most interesting thing about Chaplinsky and the fighting-words
doctrine is that there has been NOT ONE SINGLE APPLICATION of it since 1942.
NO other law, injunction, court order, or anything else has been upheld on
the basis that it was acceptable because it only prohibited fighting words.
The Supreme Court has never come right out and overruled Chaplinsky, but
they have consistently refused to apply the principle.  This was
demonstrated quite forcefully in three 1972 cases invariably referred to as
the "motherfucker trilogy," in which the Supremes overturned three
convictions of people who had used that term, in two cases directed at
policemen.  Either "motherfucker" is less likely to incite an immediate
breach of the peace than "Fascist" and "racketeer," or the Supremes were
backing off from Chaplinsky.

The one and only case that's had anything good to say about Chaplinsky was
R.A.V. v. St. Paul, which concerned a kid in St. Paul who burned a cross on
a black family's lawn, in violation of a city ordinance banning hate speech.
The Supremes, in a virtually undecipherable opinion by Justice Scalia,
assumed without deciding that the act of burning a cross is a type of
"fighting words," and is therefore not protected by the First Amendment per
Chaplinsky -- but NEVERTHELESS overturned the conviction on the basis that
the ordinance unconstitutionally prohibits some forms of unprotected speech
but not others.  This is hardly a ringing endorsement of the principle.

Based on this history, I'd say the notion that a judge can order someone to
not post to a Usenet newsgroup on the basis that what the person would post,
if allowed to, would be Chaplinsky-style fighting words is a pretty
piss-poor legal theory.  It should be an interesting case, though.  I hope
the ACLU decides to get involved; this should be right up their street.

© 1999 Peter Langston