So to Speak podcast transcript: Fighting words

January 17, 2022

Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico: Okay. Welcome to So to Speak, the Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations.

I am, as always, your host, Nico Perrino, coming to you after a month-long hiatus for the holidays. Happy 2022, everyone.

And for today’s episode, I’m joined by a guest who should be familiar to some of our regular listeners, David L. Hudson, Jr. David, welcome back onto the show.

David: Thanks for having me, Nico.

Nico: So, our listeners will recall David is an assistant professor of law at Belmont University. He’s an author, a co-author, a co-editor of I believe more than 40 books. He’s also the Justice Robert H. Jackson legal fellow for FIRE and a First Amendment fellow for the Freedom Forum Institute.

And on the past podcasts, we’ve had David on to discuss some of the exceptions that exist to the First Amendment’s free-speech clause, such as true threats – I believe we recorded that podcast maybe back in 2018 or so – and then incitement, which was in the news after the January 6 events of 2021.

But today we are going to be talking about fighting words, which is technically an exception to the First Amendment. I’ll say technically, and we’ll kind of get into a discussion of why technically needs to be applied there.

But, David, you’ve written a lot about this topic, perhaps more so than anyone else out there. And you had an article in the ABA Journal, the American Bar Association Journal, where you wrote that people can and have been arrested for uttering profanity in public, cursing in a canoe, engaging in a toilet tirade in their own home, or cursing near a school or church.

And a lot of the justifications for this punishment come from the fighting words doctrine. So, can you talk to us about what the fighting words doctrine is?

David: Absolutely. And it’s actually really astute on your part to have me discuss all three because fighting words, true threats, and incitement are all cousins in the First Amendment family.

Fighting words or the fighting words doctrine was created by the US Supreme Court back in 1942 in a case called Chaplinsky v. New Hampshire. And writing for a unanimous court, Justice Frank Murphy defined them as, quote, “words which by their very utterance inflict injury or cause an immediate breach of the peace.”

The case involved a Jehovah Witness, Walter Chaplinsky, who allegedly was denouncing other religions, got into a dispute with other citizens and then also got into a dispute with Marshal Bowering, I believe who was a semi-pro, professional football player; interesting factual dispute as to who did what, but the net effect was Chaplinsky called him a “damn fascist and racketeer,” which seems pretty mild by today’s cultural –

Nico: And this professional football player, he was a cop, right?

David: Yeah, he was a cop; he was a marshal, I guess.

Nico: Was he called to the situation because people, they were threatening violence against Walter Chaplinsky? He was getting beat up?

David: Yeah, exactly. You know, in a sense, at least according to some, Chaplinsky was the victim. But as it turns out, the victim gets arrested and is charged with fighting words – or charged with disorderly conduct under a very, very broad New Hampshire law. I think this occurred in Rochester, New Hampshire. But there was a New Hampshire law that essentially prohibited any offensive or annoying speech. And of course, to you and I, that’s just laughably overbroad.

Nico: Yeah, fascist and a God-damned racketeer. If everyone – if people were thrown in jail for calling someone else a fascist today, there’d be a whole lot of people in jail, wouldn’t there?

David: Exactly. And what’s fascinating is it was the New Hampshire Supreme Court that first used the term, fighting words, and then Justice Frank Murphy, I guess and his law clerks, adopted that when they wrote the opinion. So, the court adopted fighting words.

The court, the Supreme Court – when I say the court, the US Supreme Court narrowed the fighting words doctrine quite significantly in what is my favorite First Amendment case of all time, Cohen v. California, the “fuck the draft” case where Paul Robert Cohen wore a jacket with the inscription, “fuck the draft” at the back.

He goes into a Los Angeles County courthouse. He takes the jacket off and sits down quietly. A police officer spots the jacket and is very upset and goes to the judge and asks the judge to hold Mr. Cohen in contempt. And for whatever reason, the judge says, “No, not gonna do that.” So, the police officer waits for Mr. Cohen to come out into the lobby and arrests him for violating the California disturbing-the-peace law.

And what was very significant about the Cohen case for purposes of the fighting words doctrine is that the US Supreme Court essentially narrowed the fighting words doctrine to direct, face-to-face, personal insults. And Justice John Marshall Harlan, II, who wrote the majority opinion, emphasized that the “F the draft” message was not directed at any particular recipient, right? It was just an anti-war message.

The case is really personal to me because back in 2016 I actually interviewed Mr. Cohen. He lives in a different locale and has a different name. On condition of the interview, I promised that I would not reveal his identity.

Nico: Why does he have a different name? Are you able to say?

David: In part because of the notoriety from the case, but I made a promise to him that I would never reveal his name. I get media calls every year from people asking me to break that promise, and I never have and never will.

Nico: But were you the one who found him? I mean, how do you find someone who goes by a different name?

David: No, he actually reached out to one of my former bosses, Gene Palchinsky, and contacted Mr. Palchinsky, and Gene sent it my way. And we had him verified that it was him through some documentation, and then I interviewed him. But I can send you that article if you wanna use it.

Nico: Yeah, if you would, because I’ll put it in the show notes.

David: Yeah.

Nico: That’s kind of an interesting backstory, as well.

David: Yeah, I get calls from all sorts of authors and media shows about it. Of course, it’s nothing I did other than I just did an interview with him and I found it very fascinating. But there’s a lot more to Cohen v. California obviously than just fighting words, but that is a piece of it.

Nico: Was that how the prosecutors were justifying the prosecution in that case? Were they bringing in the fighting words doctrine, or is it just –

David: They were.

Nico: – the way the Supreme Court looked at it?

David: They were. They made numerous arguments. They said the use of the F-word, they said it was obscene. They actually argued that it was legally obscene. And of course, Justice Harlan’s response to that is obscenity has to in some way be erotic, right? It has to be related to sex. This isn’t; it’s just an amplifier.

They also argued privacy, that it infringed on the privacy and sensibility rights of women and children that would have to view the message. And Justice Harlan’s response to that was so memorable. I love talking about this to my students. He said, “Avert your eyes if you don’t like the message.”

And of course, that’s the case where Justice Harlan also wrote, “One man’s vulgarity is another’s lyric,” which is really –

Nico: Yeah, I believe it’s worth quoting here. He said, “For while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another man’s lyric.”

David: Yeah.

Nico: “Indeed, we think it is largely because governmental officials cannot make principal distinctions in this area that the constitution leaves manners of taste and style so largely to the individual.”

I wanna rewind here. So, we have Chaplinsky in Rochester, New York in 1942 or 1941, whenever the case started, whenever the confrontation between Walter Chaplinsky and the marshal, the police marshal –

David: Yeah, Chaplinsky, it’s actually Rochester, New Hampshire.

Nico: That’s it. Is there a Rochester, New York?

David: Yeah, there is, yeah.

Nico: Yeah, there is; that’s why it’s getting confused in my mind. But Walter Chaplinsky, a Jehovah’s Witness, is debating and it’s becoming quite confrontational with people on the street. The police are called in to kind of mediate it. My understanding is they don’t, and Walter Chaplinsky ends up getting beaten up or something, and it’s for that reason that he calls the police officer a fascist and a God-damned racketeer.

And then you fast-forward to the 1971 case, Cohen v. California. The court narrows that doctrine, essentially says it can only be confined to direct personal insults, I guess a way to get around the Chaplinsky case which did involve a direct personal insult, without also justifying the prosecution of Cohen’s jacket.

But then a year after Cohen, the court also set aside the conviction of a defendant who violated a Georgia breach-of-the-peace law in – what was it, the case? – Gooding v. Wilson where –

David: Yes.

Nico: – Wilson, Johnny Wilson faced criminal charges for yelling at a police officer. I believe he called the police officer a white son of a bitch, “I’ll kill you, you son of a bitch. I’ll choke you to death.” And the court reversed that conviction five-to-two. So, what gives there? That’s a direct personal confrontation.

David: Well, there’s a key difference there. In both – in the Chaplinsky case, the New Hampshire High Court had applied a narrowing construction to their state statute, which they can do, right? They’re the state High Court. And they had applied it only to reach fighting words.

The Georgia Supreme Court in Gooding v. Wilson had not applied a narrowing or limiting construction to that statute. And that’s what allowed Justice Brennan in his majority opinion to really decide that case on overbreadth grounds because the Georgia law prohibited, I think, the utterance of opprobrious language, which essentially is a fancy word for offensive.

And essentially what Justice Brennan said is the dictionary definition of opprobrious goes well beyond certainly fighting words, and this statute, at least as applied to Wilson, certainly is unconstitutionally overbroad.

Wilson also, if you think about it, the true threat doctrine I guess maybe was too much in its infancy, but the true threat doctrine began with Watts in 1969. I often wonder why they didn’t try to cabin that more as a true threat case.

They also limited it in that time period in another case called Lewis v. New Orleans.

Nico: Yeah, 1974, so that would have been two years after –

David: Yeah, it actually came up twice.

Nico: – Gooding and three years –

David: Yeah, it came up twice. It came up to the Supreme Court in ’72 and ’74, and that’s a classic what we would refer to today as a racial profiling case because Mallie Lewis, an African-American woman, accused the police of arresting her son, an African-American male, essentially by selectively targeting him, and she came up and starting cursing.

And it was in a concurring opinion, I believe, that Justice Lewis Powell gave us a key element of the fighting words doctrine as we know it today, and that principle is that police officers are held to a higher standard, that they are supposed to exercise greater restraint when confronted with intemperate, obnoxious, profane language. They have specialized training so that it’s far more likely to be considered fighting words if I’m cursing at you or you’re cursing at me and that leads us to a confrontation, versus one of us curses at a police officer.

Nico: Yeah, the 1987 City of Houston v. Hill case said that the First Amendment –

David: Exactly, man, you know this stuff cold, yeah. City of Houston v. Hill, 1987, was another Justice Brennan opinion. And that involved an anti-gay activist, Raymond Wayne Hill, who saw the police picking on one of his friends – ironically his last name was Hill as well – and Mr. Hill goes up to the officer and essentially says, “Why don’t you pick on somebody your own size?” And then he ends up getting arrested for violating an ordinance that prohibits the interruption of the official duties of a police officer or some-such.

And there’s some great language in Justice Brennan’s opinion – I quote it sometimes as a criminal defense lawyer – where he says one of the principal characteristics of a free state is that we have the right to verbally challenge government officials, that police officers are expected to receive a significant amount of criticism, and that’s one way that we distinguish a free society from a totalitarian state.

So, City of Houston v. Hill is another key fighting words case, even though I guess it’s not a pure fighting words case, but it’s related.

Nico: Not giving legal advice here, but you see the line from Chaplinsky to City of Houston v. Hill. It’s pretty much a continuous narrowing of the fighting words doctrine and significantly so when applied to the police.

So, if any of our listeners are here and they just get worked up and they decide they wanna start yelling at the police, does the law pretty much protect most of what they might say to the police officer at this point?

David: I thought that originally, and certainly there’s a lot of caselaw that should support it, but it’s a bad idea because, one, you may get roughed up and then you’ve got a criminal record and then you’ve got to hire an attorney and it’s a hassle.

But I did some research, and this led to my law review article that I did for FIRE that I’m proud to say was published in the University of New Hampshire Law Review, but –

Nico: Yeah, that essay is called, “The Fighting Words Doctrine, Alive and Well in Lower Courts.”

David: Yeah.

Nico: We’ve been talking about the Supreme Court, so –

David: Yeah, exactly. So, the US Supreme Court has never upheld a conviction in a fighting words case since Chaplinsky, which is back in –

Nico: Since 1942.

David: Exactly. What I did unfortunately is, you know, digging into the caselaw pretty significantly, I document about 14 or 15 cases or more than that, but I found – I thought that they were factually interesting – I document about 14 or 15 cases and go through them. And then I identified different factors that led those courts to more likely find something to be fighting words.

And so, some of those are the fact that the courts will focus on the conduct of the defendant in addition to the speech. So, they will say aggressive conduct, flailing of the arms. There’s actually a spitting line of cases. So, if you spit at the officer, that’s unprotected conduct, not protected speech. The volume of the speech is important, so that apparently if the speech is at a high enough volume for a longer period of time, that can be deemed fighting words.

Racial slurs are sort of a category of their own. And so, in cases where they are direct racial slurs, particularly if they’re uttered by juveniles, that’s actually a piece that I’m working on for FIRE right now is that I’m looking at the disparate way that courts treat fighting words cases when the speaker is a juvenile. And so, the caselaw’s not as favorable for juveniles as it is for adults.

Nico: That would seem to turn what you would think the caselaw would say, if there were to be any discrepancies between juveniles and adults, on its head because you’d think the courts would hold adults to a higher standard that a child, right?

David: Well, except for that line – remember that line in – it was in New Jersey v. TLO and Bethel School District v. Frasier where they said the constitutional rights of minors are not automatically coextensive with that of adults, and so they said minors have less rights than adults.

And then I think it’s traced back to the In Re: Gault case, which is really the seminal juvenile justice case, which says that in juvenile adjudications, minors have some of the constitutional rights of adults, but they don’t have the full panoply of rights. And so, unfortunately, I think it’s an offshoot of that. It’s unfortunate.

So, you’re absolutely correct, there’s all sorts of precedent that should establish that you actually do have a First Amendment right to utter profanity at an officer, not recommended of course. But there’s enough caselaw out there where in the lower courts, I guess courts strain to find that something constitutes fighting words.

And the reason for that, right, is the First Amendment sets such a very high bar for criminalizing pure speech. And it has to fit into one of these narrow, unprotected categories. And really the only one that applies in those situations is fighting words because true threats is cabin to serious expression of intent to kill or cause serious bodily harm, and incitement is not generally A speaking to B, right? Incitement is A speaking to the world at large and then B, one of those recipients, then immediately engages in unlawful action. But they are all related; that’s why I call them cousins in the First Amendment family.

Nico: So, these anti-profanity laws, for example, that still litter the books, and you write about this – I believe it’s either in your essay or in your American Bar Association article – are often justified, if they have to go to court, under the, I’m assuming, fighting words doctrine. They don’t, in most cases, get up to the Supreme Court when they are actually used in a case or they are actually prosecuted.

So, for example, in your article, you say there’s a 1962 South Carolina law that prohibits cursing on a public highway or within hearing distance of a church or school.

There’s a Mississippi law passed in 1848 that prohibits using profane or vulgar language in the presence of two or more people. Those in violation can receive a $100.00 fine or up to 30 days in county jail.

There’s a Rhode Island law enacted in 1896 – and I’m assuming these are still on the books – that provides that every person who shall be guilty of profane swearing and cursing shall be fined not exceeding $5.00.

And I believe that South Carolina anti-profanity law was used as recently as 2016 when it was upheld after the conviction of a woman who said, “This is some motherfucking shit,” within 60 yards of a local church.

David: Yeah, there are still a lot of these laws on the books, and I did that for actually another law review for FIRE that ended up being published in the Thurgood Marshall Law Review, I think down in Texas. And there are quite a view of those laws out there, and I don’t even know how many ordinances there are. So, I was just looking at state laws. There may be some ordinances or city laws that prohibit this stuff, and then no one ever challenges it. But in my opinion –

Nico: Well, they probably don’t get used all that often.

David: Yeah, exactly. That was the whole thing, you know, in the First Amendment community, everyone kind of was really appalled at the cussing canoeist case. Do you remember that one? Timothy Boomer is a canoeist, and apparently something happens with his canoe and he’s upset, and he just goes on a tirade, a torrent of profanity. And right around the little bend are women and children, and I guess they complained.

And he ends up getting arrested under a 19th Century law that prohibited cursing in public in the presence of women and children, and that created a big stir in the First Amendment community.

Nico: We’ll you’ve got to wonder, right, practically how any of those prosecutions happened, right? If you’re a police officer, you have a canoeist who’s shouting profanities. Children happen to be in the area. The police officer doesn’t know the profanity laws. I mean, it’s probably one of a 1,000 different laws. What, does he arrest him and then they get together with the prosecutor and determine what you’re gonna be charged with? How does that even practically work?

David: I think what happens sometimes, I think officers don’t like to be challenged. And of course, look, I don’t wanna dock officers particularly in this time period. I mean, what a difficult job the police officer has. And, yeah, I taught a lot of students who were police officers through the years and a lot of great officers.

But there are some officers – I, for example, was driving down the road one day, and the cop is out in the road and is telling me to stop. I’ve got a green light and I didn’t realize, I just – I stopped, but I stopped later than he wanted, so I was up in the intersection.

And he just comes running up to me, just foul mood, cursing at me. And at the time, I was sort of thinking, okay, this is my chance to be a First Amendment litigant. Discretion was the better part of valor. I just said, “I’m sorry, sir,” you know, complied, showed him my license. He let me go. I didn’t do anything wrong really.

But I think a lot of times in stressful situations, people don’t like to be challenged. They don’t like people who are smarting off to them and whatnot. And sometimes these things occur with maybe people they’ve had prior run-ins with. But there are fundamental problems. I mean, if we’re gonna have the doctrine, I think it needs to be very narrowly cabined to truly direct, face-to-face, personal insults.

Now, there’s a movement afoot a bit to extend that Justice Powell police officers held to a higher standard. There’s a Connecticut Supreme Court case – I think it’s State v. Beccara – I may have the name slightly wrong – or Baccara.

Nico: Yeah, no, it involved Nina Baccala.

David: Baccala, yeah, State v. Baccala.

Nico: It’s the State v. Baccala, yeah.

David: And what the Connecticut High Court did is they said, well, store managers are trained to deal with a lot of patrons who are upset and using temperate language. And so, we’re going to essentially extend the police officers are held to a higher standard to the store managers held to a higher standard. So, it’s not fighting words when a woman behaved very badly toward a store manager.

There was a petition for writ of cert, and I was kind of hoping the Supreme Court would take it just so they could talk about the fighting words doctrine, but they didn’t do it. And at some point maybe one of these will come up. I keep thinking that perhaps one of these involving a juvenile, or perhaps one of these statutes will be challenged all the way up.

It’d be very interesting to get some Supreme Court guidance because if we don’t have the US Supreme Court case, and we don’t have a recent one, I think we’re gonna have these little things in the lower court caselaw where people are still prosecuted for this stuff.

Nico: Yeah. Well, you do see the fighting words doctrine come up in arguments at the Supreme Court in First Amendment cases. I believe it came up in Texas v. Johnson, right, the Texas flag desecration law.

David: It did.

Nico: Didn’t they try to justify that law under the fighting words doctrine and failed?

David: They did, yeah, they were looking for everything. And was a fight – you know, we forget now, but we view Texas v. Johnson as a classic First Amendment case, but it was five-four.

Nico: This was a 1989 case.

David: Yeah, and Cohen v. California was five-four, I believe. So, that’s why it’s so important who sits on the United States Supreme Court.

Nico: Well, one thing that I’ve found in my 10 years at FIRE is, as First Amendment people, free speech people, we kind of accept that in doing our work, you’re gonna deal with people who use language that we don’t on a daily basis or who are at the margins of society or pushing limits or a bit transgressive. But every time we have a profanity case, and I assume that there’s enough profanity in the world that people aren’t gonna be outraged about it, people are always outraged about speech that involves profanity.

We had a case, I believe it was at a community college in Louisiana, student stormed out of a classroom, pissed off about a grade he got, I believe. I might be remembering the facts wrong. He used a profanity, not directed at anyone, but kind of mumbled it under his breath as he was walking out, and we thought this was kind of an open-and-shut deal. Everyone’s done that. But, no, people were really upset that he swore.

And so, it always kind of takes me by surprise, and now it doesn’t as much because I know it, but maybe that’s kind of at issue in some inaudible – crosstalk 00:27:24.

David: Well, I’ll tell you, the reason I became so passionate about the First Amendment, I don’t know if I’ve ever told this story publicly. I may have written a piece about it, but I’ll mention it briefly. I was in high school, and I was a big fan of the Philadelphia 76ers back when they had Julius Erving, Moses Malone, Maurice Cheeks, Andrew Toney. They had some great teams in Philadelphia.

Nico: Were you from Philly?

David: No, I just loved the Philadelphia 76ers. I loved Dr. Jay.

Nico: Oh, gotcha.

David: You know, he was like a Michael Jordan of our time. And they had a hard time getting past the Boston Celtics, right, because the Boston Celtics were awesome. The ’86 front line of Larry Bird, Kevin McHale and Robert Parish may be the greatest front line in basketball history.

So, I’m in class and I’m talking with another student, and I’m talking about the 6ers and they mention the Celtics, and I say out loud, I say, “The Celtics suck.” And I get booted out of class, and I can’t come back to class until I go and talk to the academic dean. And a week before, another student had used the F-bomb and they never got in trouble.

And so, that whole experience taught me two things: One is that sometimes when you say something, there are repercussions obviously. But the other thing it taught me was selective prosecution is a very real thing, right? I was treated differently than somebody else who actually said something probably worse. But I was like, man, that’s unfair. This is completely unfair. Why should I be punished for this?

Nico: Yeah, it offends your sense of justice, right?

David: Yeah, exactly.

Nico: In your ABA article in which you do some reporting on the fighting words, you quote someone, Gunningsmith – I forget what their first name is, might be a professor – but they say that the fighting words exception to the First Amendment is justified as a prophylactic means to prevent immediate violence. If violence was not actually likely in the real-world context, then the words cannot be punished.

So, my question is: Shouldn’t we just then incentivize – shouldn’t we just then punish violence? If violence is likely in a situation as a result of someone uttering fighting words, then the violence is probably gonna happen, right, if it requires face-to-face interaction. So, if it doesn’t happen, then it probably wasn’t very likely that it was gonna happen. So, doesn’t it then incentivize violence almost? Does that make sense?

David: Yeah, I think so. It’s very – the doctrine’s very problematic. Probably the most wholesale criticism of the doctrine, and it’s very well-written, it’s a law review article written by a guy named Burton Caine, who I don’t know is still teaching, but Burton Caine – I think it was published in the Marquette Law Review – and this is like a 125-page law review article that talks about problems with the fighting words doctrine. One of those, by the way, is selective prosecution of who actually gets prosecuted.

But the doctrine itself is very troublesome, and particularly a lot of the underlying laws and ordinances that people are charged under, I think they’re not very well-drafted. And so, I think they sometimes use the fighting words as an excuse as a way to, well, we’ve got to somehow narrow this darn thing, so there is this category. Supreme Court created it in 1942, and that’s why it gets mentioned all the time, as you said, in Supreme Court oral arguments, right, because it is a recognized exception to the First Amendment, and it’s been there for a very, very long time.

Nico: Yeah, I should mention Gunningsmith is Damian K. Gunningsmith, who was co-counsel for Baccala in that Connecticut case that we were discussing before, involving the store manager.

I think you and I have talked about this before, but I’m offended by exceptions to the First Amendment that sort of depend on the reactions, the subjective reactions of a listener, right? Incitement’s kind of like this, and fighting words is kind of like this. You speak out to the world, right, and your speech is protected unless that speech is likely to result in a listener doing something illegal, whether it be take violent action in the case of fighting words, I guess, or take violent action in the case of incitement. I mean, true threats makes sense, right, because it’s an exception that speaks to potential actions, not speech actions, but physical actions of a speaker. How do you think about that sort of?

David: I’m troubled by it as well. In fact, I’d give another example. As you know, I’m really invested in the K-through-12 caselaw, and the leading standard there comes from the Tinker case, right, Tinker v. Des Moines, the black armband case. And the standard the US Supreme Court said is reasonable forecast of substantial disruption.

Well, what sometimes happens in these Tinker cases is that the speaker is entirely peaceful, and then it’s the recipients who are unruly, and their unruly actions essentially impose a heckler’s veto upon the peaceful speaker. And the 7th Circuit has spoken against this heckler’s veto principle some, but it still exists out there.

It’s like that Dariano case out in California, Dariano v. Morgan Hill Unified School District, where the kids can’t wear the American flag T-shirts on Cinco de Mayo because the school assistant principal convinces the court that he really was concerned that there would be an outbreak of violence, even though the students who wore the T-shirts, at least on the face of the complaint and the pleadings, it didn’t appear that they had engaged in any violent acts themselves.

One other interesting thing, too, is it’s gone beyond just the verbal speech, the fighting words. There are a whole line of middle-finger, flipping-the-bird cases out there, which is kind of interesting. And there’s actually a piece, I think it’s called, “Digitus Impudicus” by Ira Robbins, and he goes through and he actually details all the flipping-the-bird cases.

But a really funny story, I was working at the First Amendment Center, and one of my law-school classmates worked at a very prominent law firm, and I don’t know why he got the case – I think it may have been a pro bono case or something – but one of his clients was charged with disorderly conduct for flipping a bird at a police officer.

And he calls me up and says, “Do you know any cases?” And it just so happened I’d been studying this, and I gave him five cases right off. He goes up to the General Sessions Court, quotes the five cases, and the charges get dismissed. So, that was a good story, you know.

But, yeah, I think what makes the fighting words cases so interesting are the varying fact patterns that can arise and some of the funny things that people may say or like the toilet tirade case that you mentioned. I mean, I’d be pretty upset if my toilet was clogged up, right? That’s not a good thing to have happen. I don’t know if I would curse loud enough that my neighbors could hear it, but –

Nico: I should make a plug for FIRE starting to get into the TikTok game. I read a study that found that teenagers’ three favorite social media apps, I think TikTok is number one, Snapchat and Instagram are the other two of the Top 3. So, we’re trying to create content for that medium, and we created one on the Chaplinsky case, kind of a fun, satirical, educational video about the facts of that case –

David: Oh, cool.

Nico: – and it performed really well. I think of the videos we’ve posted so far, it’s performed the best. So, I encourage our listeners to go find us on TikTok and follow us on TikTok. We’re really trying to grow that platform, and people on it seem to enjoy it.

But moving forward here, David, you’ve kind of already spoken to what I suspect you’re gonna say, but what needs to happen with the fighting words doctrine? Does there need to be a Supreme Court decision that’s focused squarely on what would be the fighting words exception? We’ve had it come up in oral arguments in cases that are pretty clearly not involving fighting words, like flag desecration. But what needs to happen?

David: Yeah, so Chaplinsky is often cited for that one passage in Justice Murphy’s opinion where it said there are certain narrow, limited – narrow, well-defined, limited classes of unprotected speech, blah, blah, blah. These include the lewd and obscene and fighting words. And so, that passage stands for the principle of categorization, that there are some unprotected categories out there.

But directly to your question, I do think that there are enough of these really nasty, little lower court cases out there that I’m hoping in the right case that the court will cabin that doctrine to very discreet particular circumstances where maybe the statements are so bad perhaps that they are akin to throwing a punch at somebody, right? And I think that we need somebody – I think we needed the court to take that Baccala case. That would have been very interesting as well.

I’d like to see the court clear up the differential treatment of juvenile speakers versus adult speakers. And I’d like the court to reaffirm the principle that they’ve made in many cases, like Cohen and maybe Hustler v. Falwell and some of these other cases, that offensiveness is just not a justifiable justification for censoring speech, right?

It goes back to what Brennan wrote in Texas v. Johnson, right? If there’s a bedrock principle underlying the First Amendment, the government may not prohibit the expression of ideas simply because it finds it offensive or disagreeable. And that is just black-letter, hardcore, First Amendment free speech law. But yet, if you look at what happens at the lower court level, it just –

Nico: Falls away.

David: – yeah, it falls away.

Nico: What exceptions do we still have to cover, David, in subsequent podcasts? Obscenity, I’m assuming.

David: Yeah, obscenity and child pornography. There are really four categories of sexual expression, so those get lumped together, obscenity, child pornography, harmful to minors, and indecency. Obscenity and child pornography are unprotected categories. Harmful to minors is unprotected for young minors, perhaps protected for older adults – I mean for older minors and adults. And indecency –

Nico: Why does child pornography fall under an expressive category when we talk about exceptions to the First Amendment? It seems to me it would just be unprotected conduct for reasons unrelated to the expressive nature of it, to the extent that there could be arguably inaudible – crosstalk 00:39:08.

David: Yeah, well, so oftentimes they may arise in the context of a film.

Nico: Okay.

David: So, New York v. Ferber, 1982, is where the court created the exception. And so, it’s kind of – the thinking is there may be a film that has some artistic value, but then it has one scene of child pornography. So, does that one scene trump the entire film?

Nico: Oh, I see.

David: Well, it does if it involves lascivious display of a minor’s genitalia or some such. But the Ferber case is important because the Supreme Court intimated that if the evil overwhelmingly outweighs the expressive value of the speech, then it can be prohibited.

What I think is important, and we should applaud the Roberts Court for this, is that the Roberts Court has resisted the creation of new unprotected categories, right? They’ve done that in four different cases: no new exception for violent videogames in Entertainment Merchants Association v. Brown; no new First Amendment exception for images of animal cruelty in United States v. Stevens; no new exception for funeral protest in Snyder v. Phelps; and no wholesale category exception for false speech in United States v. Alvarez.

So, that actually might be a good topic is to address the Roberts Court. That’s something that Ron Collins and I also did for FIRE is that we looked at the Roberts Court in its First Amendment jurisprudence and free-speech cases almost in toto, and that’s one of the themes that we gleaned out from the Roberts Court that’s on the positive, right?

I think one that really needs to be discussed because it really morphs into all sorts of exceptions is speech integral to criminal conduct.

Nico: Yeah, well, what is that, like collusion or fraud?

David: Well, there’s all sorts of things like fraud, solicitation. You know, speech is intrinsically related to the underlying crime, right, speech integral – in other words, you engage in some speech, and that’s part of the crime; that’s not protected. And so, I think that would be interesting to discuss. That’s often traced back to the Gibboney case, I think from the 1940s.

Defamation, you’ve probably done a lot on that, but defamation is obviously worth discussing because there have been so many high-profile defamation suits in recent years.

Nico: Yeah, I did some sparked by Trump’s comments on that front with Lee Levine back before he retired.

David: Oh, yeah.

Nico: His firm was involved in a lot of defamation work. So, yeah, it sounds like we’ve got obscenity, speech related to criminal conduct that we’ve still got to cover. And I am gonna write down in my editorial notes to maybe get something going with you and Ron Collins to discuss the Roberts Court because I think that is worthwhile, the Robert’s court.

David: Oh, thanks. Yeah, we’ve got a bit piece coming out, it’s about 120 pages in the Brooklyn Law Review, kind of did that for FIRE really.

Nico: When’s that coming out? That might be a good time to inaudible – crosstalk 00:42:08.

David: It’s coming out in about a week or so.

Nico: Well, shit, we should have done it this time, and we could have piggybacked on it, but maybe –

David: Yeah.

Nico: – I’m gonna – I think the next podcast is going to be about some of these so-called critical race theory or divisive concept bills that are popping up in state houses across the country and then some of the library book bans. So, if any of our listeners inaudible – crosstalk.

David: Oh, those bills are terrible. I’ve written about those. I have an ABA Journal article coming out about those bills.

Nico: Yeah.

David: You’ve talked about incredibly chilling in the speech of a high-school teacher, you’ve got high-school teachers who are afraid to talk about – I don’t know – the Columbia Race Riot of 1949 here in Tennessee because they don’t wanna say something that somehow is, you know –

Nico: Yeah, I wanna – I’m gonna get Jeffrey Sachs, who is a professor up in Canada, he’s been following all the laws, and I think he’s got a database of them. So, I’m gonna bring him in to talk, and I kind of wanna find actually a defender of them to come on as well.

Sorry, my little Irish Setter puppy over here just walked in to say hello. You probably can’t see him. He’s down there, exiting the room.

David: Oh, no, that’s great. I love – I’m a huge dog lover. I’ve got two myself.

Nico: Oh, yeah. He’s two and a half. He’s an Irish Setter/Golden Retriever mix who recently bit a rock because he likes anything that looks like a ball and resulted in – and cracked his canine tooth, so that resulted in a very expensive root canal and crown. He’s too young to remove the tooth, and it’s such an important tooth, and he uses his mouth so much. Anyway, now we’re getting onto different topics.

David: Yeah.

Nico: But that’s the next podcast. If any of our listeners have any questions about those bills or some of the stuff that’s happened with libraries, please send them my way. It’s either next podcast or the podcast or two after this. I might want to get with you and Ron to talk about the Roberts Court before that, especially if your Brooklyn Law Review article’s coming out in a week or so. But I think we’ll leave it there for now, David.

David: Okay.

Nico: I appreciate you, as always, coming onto the show –

David: Yeah.

Nico: – and discussing the exceptions to the First Amendment.

David: Well, you do great work, and it’s an honor to be on your show anytime.

Nico: You have encyclopedic knowledge of some of these cases, so I always know I’m gonna get a lot of meaty content from you when you come on the show, so thank you.

David: Thank you, man, appreciate you.

Nico: That was Assistant Professor of Law at Belmont University and FIRE legal fellow, David L. Hudson, Jr.

This podcast is hosted, produced and recorded by me, Nico Perrino, and edited by my colleague, Aaron Reese. You can learn more about So to Speak by following us on Twitter at Twitter.com/freespeechtalk or by liking us on Facebook at facebook.com/sotospeakpodcast.

We take feedback, potential listener questions. The dog wanted to chime in here one more time. He’s looking out the window at the snow. We take listener questions, feedback at sotospeak@thefire.org.

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