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ThePSCReport^online!
A Semi-Quarterly Journal for the Alumni of the University of Rhode Island Political Science Department. 

Faculty Editors:
Professor Alfred Killilea
Professor Nicolai Petro

Editor:
Michael D. Fox

Associate Editor:
Sherry Keneson-Hall

Supported by the generous
donations of the University of Rhode Island Political Science Alumni.

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At its core is a group of rights assured to individual members of the society. This set of rights, which makes up our present-day concept of free expression, includes the right to form and hold beliefs and opinions on any subject, and to communicate ideas, opinions and information through any medium – in speech, writing, music, art, or in other ways. To some extent it involves the right to remain silent. For the obverse side it includes the right to hear the views of others and to listen to their version of the facts. It encompasses the right to inquire and, to a degree, the right of access to information. As a necessary corollary, it embraces the right to assemble and to form associations, that is, to combine with others in joint expression… At the same time, the rights of all in freedom of expression must be reconciled with other individual and social interests.²

     On the surface it appears that Murphy has clearly delineated what is high value speech from what is considered low value speech, but his definition falls prey to some of the same criticism offered against Mill; in that is his definition is difficult, if not at times, impossible, to apply. But, what is meant by the term speech?
There are some who argue that the Framers intended the term speech be interpreted literally, as only that – speech, but as we see in Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780 (1971), the court has found a certain value in the penumbras, the shadows, of speech itself. This case indicates that speech contains more than just words.

     In Cohen, the issue surrounded use of the words “Fuck the draft,” and whether these words contained any political meaning and thus were protected under the First Amendment, or whether they were simply an illustration of the “lewd and obscene, or profane,” of Justice Murphy’s low speech definition, and thusly regulatable. 

     The decision, rendered by Justice Harlan, spoke of a deeper meaning that may be inherent in the usage of certain words. “We cannot allow the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process… [in that] much linguistic expression serves a dual communicative purpose: it conveys not only ideas capable of relatively precise, detailed explanations, but otherwise inexpressible emotions as well.”
Harlan, having spoken so eloquently about ‘inexpressible emotions’ contained in some words that might otherwise be restricted, left open a larger question later addressed by the Court in Texas v. Johnson, 491 U.S. 397, 109 S.Ct. 2533 (1989) which asked whether those ‘inexpressible emotions’ could also be found in actions, and thusly extend First Amendment protections.

     In Johnson, Justice Brennan attempted to define whether the an act of protest which involved the burning of a flag could be considered speech. While the State agreed that Mr. Johnson’s action was indeed expressive conduct, Justice Brennan felt it necessary to go beyond Texas’ stipulation and he outlined a two-part method, or test, of what qualifies as speech. In Brennan’s words, “The expressive, overtly political nature of this conduct was both intentional and overwhelmingly apparent.” From this statement we can conclude that speech, in order to be considered protected must:

(a) be intended to convey a particular message, and
(b) have a high likelihood of being understood as conveying a particular message by those who view (or hear) the act.

     It being one of the first areas addressed by the court, we shall begin examination of the meaning of the terms “insulting or ‘fighting’ words,” with the definition provided in Chaplinsky. “Insulting or ‘fighting’ words [are] – those [words] which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

     Again, on its surface, the definition seems simple enough. But, if we are to infer from both Cohen v. California and Texas v. Johnson that the idea of speech encompasses more than mere words and can be applied to certain acts which contain the ‘inexpressible emotions’ (sometimes called speech plus conduct, or simply speech plus), and ask whether acts then, can be excepted under the fighting words exception as low speech and denied First Amendment protections. In this issue, the Court is somewhat less clear.

     Many use R.A.V. v. The City of St. Paul, Minnesota, 505 U.S. 377, 112 S.Ct. 2194 (1992), as precedent. But while R.A.V. involved the question of whether cross-burning could be considered protected speech ⁴, the Court’s decision actually turned on a question of breadth⁵  and whether the restriction was viewpoint-biased thereby making it unconstitutional. Justice Scalia addressed these issues in the opinion stating that whether dealing with high value speech or not, the government cannot draw lines on partisian bases which then become either subject matter or viewpoint based discriminations.

     It was not until later, during Wisconsin v. Mitchell, 508 U.S. 476, 113 S.Ct. 2194 (1993), that the Court finally addresses whether expressive actions, that might be construed as speech, can be restricted. 

     After discussing a particular scene from the movie “Mississippi Burning” with friends, Todd Mitchell, a young, African-American male, addresses his friends, “Do you all feel hyped up to move on some white people?” Then, after seeing a young white boy across the street he prompts his accomplices into assaulting the boy by saying: “There goes a white boy; go get him!”

     The question addressed by the court in Mitchell was whether the State violated the “First Amendment directly by punishing what the legislature has deemed as offensive thought…because it [the ordinance] punishes the defendant’s discriminatory motive, or reason, for acting.” Justice Rehnquist, in rendering the opinion, states specifically that, “the statute in this case is aimed at conduct unprotected by the First Amendment.” In upholding the statute’s prescribed punishment of actions “motivated by a discriminatory point of view,” Rehnquist implicitly affirms that some expressive actions, fall under the auspices of low speech and outside of the High speech protections.

     Having addressed the term “fighting words,” we turn to what is meant by “libelous speech,” or, defamation. Justice White, in his dissenting opinion in Getz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997 (1974), states that defamation, under some of the laws contemporaneous to this decision, is described as “a false publication that would subject him [the victim] to hatred, contempt, or ridicule.” While the law makes clear distinctions between libelous (printed) and slanderous (oral) speech, it needs to be clarified that, for the purpose of this paper, the term libelous should be taken to include both forms of defamation. 

     In a case of first impression, or the first time that a particular issue is addressed by the Court, Justice Brennan, in New York Times v. Sullivan, 376 U.S. 251, 84 S.Ct. 710 (1964), points out that “neither factual error nor defamatory content suffices to remove the constitutional shield from criticisms of official conduct, [and] the combination of the two elements is no less inadequate [sic].” The Court, in its reasoning, quotes Madison: “the censorial power is in the people over the government, and not in the government over the people.” ⁶

     But then the question of truth becomes an issue. Why is truth not necessary? As stated in the opening quote from Mill (supra), truth is not necessary because even “if [the opinion is] wrong [we] lose, what is almost a great benefit, the clearer perception and livelier impression of truth produced by its collision with error,”⁷  and, as echoed by the Court in Getz, “punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and the press.” So then, to both Mill and the Court, to risk the loss of ideas is a greater fear than the risk of a loss of truth.

     Current legal practice in cases of libel, has been set forth in Beauharnais v. Illinois, 343 U.S. 250 (1952) and maintains that libel (and defamation) by private persons or groups receives no First Amendment protections. As for public officers, precedent governing libel begins in common law and currently extends to the rulings in Hutchinson v. Proxmire, 443 U.S. 111 (1979) and Barr v. Matteo, 360 U.S. 564 (1959), which grant immunity to both public and federal administrative officials. But this distinction brings to light another issue; that of the difference between public and private persons.

     The differentiation between private and public individuals arose out of an explanation of what requirements were necessitated in order to prove defamation. In New York Times, Justice Brennan in writing the opinion for the court, alluded to a requirement of “actual malice” be demonstrated in cases involving the defamation of a public figure. However, in Getz, the Court set the requirement at “fault” for the defamation of a private individual. In both distinctions, as we saw in “fighting words,” motive is a central issue.

     It is this very distinction that lies at the center of Falwell v. Hustler. Falwell argued for the court’s utilization of the lowered standard of defamation of a private person. Had, the court accepted his assertion, he would then have only had to have shown “fault.” Instead, the court imposed the higher standard which viewed Falwell as a public person, forcing him to make a showing of “actual malice” meaning that he must prove that the defendant acted “with knowledge that it was false or with reckless disregard of whether it was false or not.”⁸

     So far, in the attempt to discover the meaning of Low speech, we have seen that, at least as pertains to libel and fighting words, movement into the category of low speech requires an ill motive; an intention to do harm to others or a reckless disregard for others which causes harm. The next question is whether this requirement is also necessary in determining what is meant by the last part of Justice Miller’s famed phase, “lewd and obscene, the profane.”

     The word profane is often associated with religion, and rightly so. According the Funk and Wagnall’s Dictionary, profanity involves "manifesting irreverence or disrespect toward the Deity or sacred things.”⁹  Yet, in light of the First Amendment’s prohibition against the “establishment of religion” or restricting the “free exercise thereof,” and the Court’s ruling in Wisconsin v. Yoder that mere coincidental connections between otherwise illegal activity and religious practice did not forbid the restriction of such activity, the religious interpretation of “profane” is not likely. 

     Again, the dictionary is helpful in that it offers another definition of profanity as what is “vulgar, common, course.” Going further, it gives examples stating that both “cursing and swearing are types of profanity,” with swearing defined as “the uttering of rash or empty oaths.”

     This appears to be the definition intended by the Court in Chaplinsky where the case turned on the constitutionality of a law forbidding the use of “any offensive, derisive or annoying word…[or] any offensive or derisive name…[or having the] intent to deride, offend or annoy...”

     Further, the Court even stated that they could not “conceive that cursing…is the exercise of religion in any sense of the term.” Moreover, the Court states that “resorts to epithets or personal abuse is not in any proper sense communication of information safeguarded by the Constitution.”

     But even within this definition problems lurk. What, exactly, is ‘offensive, derisive or annoying’? The Court, realizing that we could not rely on the addressee as the determiner of offense, offered the reasoning of the New Hampshire court: “The test is what men of common intelligence would understand be words likely to cause an average addressee to fight…” thereby equating profanity to the category of ‘fighting’ words as outlined, supra.

     It is at this point that we must address the final part of Justice Murphy’s definition. What is the meaning of the terms “lewd and obscene”? David O’Brien frames the problem best:

The problem of defining and dealing with obscenity, pornography, and other offensive speech is a continuing controversy in the constitutional politics of interpreting the First Amendment…In a pluralistic society, people disagree over what is obscene, pornographic and offensive; no consensus is possible.¹⁰

     Attempts at defining the nature of obscenity began as early as 1868 with the paternalistic approach offered in Regina v. Hicklin, L.R. 2 Q.B. 360 (1868). In what became known as the Hicklin test, obscenity was defined as “whether the tendency…is to deprive and corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort might fall.”

     It was not until 1957 that the Court finally rejected Hicklin as precedent in Roth v. United States (1957). It might be argued that they borrowed their reasoning strait from Mill. “Whenever, in short, there is a definite damage, or risk of definite damage…to the public, the case is taken out of the provinces of liberty and placed into that of morality or law.”¹¹  In Roth, Justice Brennan proposes that obscenity should be tested by judging “whether to the average person, applying contemporary community standards, the dominant theme of the material appeals to the prurient interests” [emphasis added]. But what are average persons, contemporary community standards, and the ‘prurient interests’?

     Current judicial precedent lies in the case of Miller v. California, (1973). Here, the Court in attempting to answer these questions, formulated the so-called ‘Miller test’:
 

(a) Average Person: “whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.” [Clarified later in Pope v. Illinois, 481 U.S. 497 (1987) to mean ‘reasonable person’.]
(b) The term contemporary community standards mean local standards.
(c) Prurient Interest: “whether the work depicts or describes, in a patently offensive way sexual conduct specifically defined by state law.” Some examples given by the Court included:

1. “Patently offensive representations or depictions of ultimate sexual acts, normal or perverted, or simulated.”
2. “Patently offensive representations or depictions of masturbation, excretory functions, and lewd exhibition of the genitals.”

     Utilitarian principles, such as those espoused by J.S. Mill, define offense in terms of wrong acts committed against others; that is in terms of relationships, or obligations, owed to society. While Mill staunchly defended the principle of liberty, he offered this caveat: “The Liberty of the individual must thus far be limited; he must not make himself a nuisance to other people.”¹²  Mill felt that acts became nuisances “as soon as any part of a person’s conduct affects prejudicially the interests of others…”¹³

     The Court adopts this same line of reasoning when in Paris Adult Theater I v. Slanton, 413 U.S. 49, 93 S.Ct. 2628 (1973) when it quotes Bickel:

It concerns the tone of society, the mode, or to use terms that have perhaps greater currency, the style and quality of life, now and in the future. A man may be entitled to read an obscene book in his room, or expose himself indecently there… We should protect his privacy. But if he demands a right to obtain the books and pictures he wants in the market, and to foregather in public places – discrete, if you will, but accessible to all – with others who share his tastes, then to grant him his right is to affect the world about the rest of us, and to impinge on other privacies…what is commonly read and seen and heard and done intrudes upon us all, want it or not.” 22 The Public Interest 25-26 (Winter 1971). (Emphasis added.)

     The problem with Mill’s principle, as pointed out by his critics, is that he never defines what he means by ‘perceptible  harm,’ leading some to believe that perceptible means physical. 

     Philosopher Joel Feinburg, seeks to repair the problem associated with the harm principle by distinguishing between what are mere nuisances and what he terms as “profound offenses.” Mere nuisances, he says, are short lived, it is in the experience that they are offensive. In the words of Justice Sutherland, “nuisance may be merely a right thing in the wrong place – like a pig in the parlor instead of the barnyard.”¹⁴

     Profound offences, however, are such that the very though of them offends our sensibilities, they “touch a chord of moral sensibility…and invoke an impersonal or disinterested moral outrage or else an aggrieved response on one’s own behalf because of the unpleasant mental states one has been forced to experience.”¹⁵

     But in contrast to those who assert that perceptible harm means physical harm, Mill, as seen in light of Feinburg’s proposal, seems to be open to the idea that harm’s inclusion of more than just the physical. This thinking is echoed by Justice Holmes in State v. Bradbury (1939) in that “the final requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong.”

     So, where the courts have created somewhat workable definitions for “the profane, the libelous, the insulting or ‘fighting’ words” of Chaplinsky  which rely upon the definable concept of intent, the question of what is “lewd and obscene” remains to be adequately defined. This problem exists, in spite of the Court’s attempts because, as O’Brien pointed out, the ‘actual feelings and opinions of the community’ are not only varied and wide-ranging, but vacillate over time rendering any definition that might be valid today, invalid tomorrow.

1.Mill, J.S., On Liberty, Elizabeth Rappaport ed., Hackett Publishing Company, Inc., Cambridge, 1978. p.16.
2.  Emerson, Thomas, The System of Freedom of Expression, New York, Random House, 1970. p.3.
3.  Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
4.  No one can deny that this speech was “likely to provoke the average person to retaliation, and thereby cause a breach of the peace.”
5.  That is the St. Paul ordinance acted so as to restrict some hateful acts while allowing other equally hateful acts.
6.  See also: Barr v. Matteo, 360 U.S. 564 (1959).
7.  See Mill’s discussion of the importance of free speech in relation to both truth and falsity in Chapter II, entitled “Of the Liberty of Thought and Discussion,” of  his book, “On Liberty.” 
8.  New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710 (1964).
9.  Funk and Wagnall’s Standard Desk Dictionary. Harper & Row, Publishers, Inc. 1984.
10.  O’Brien, David, Constitutional Law and Politics: Volume Two: Civil Rights and Civil Liberties, W.W. Norton & Company, New York, 1997.
11.  Mill, Op Cited at p.80.
12.  Op Cited at p.53.
13.  Op Cited at p.73.
14.  Euclid v. Ambler Realty Co., 272 U.S. 365 (1926).
15.  Feinburg, Joel, “Obscenity as Pornography,” in Adams, David, Philosophical Problems in the Law, Second Edition, Wadsworth Publishing Company, Boston, 1996.

The PSC Report
Al Killilea, Faculty Editor
Political Science Department
University of Rhode Island
Washburn Hall
Kingston, RI 02881