American Constitutionalism in Historical Perspective (packet)

Fighting Words:

1. 
   Chaplinsky v. New Hampshire, 1942: Jehovah’s witness called a man a damned fascist. This is unprotected speech since fighting words directed at an individual. Particularly incendiary words in context where ppl likely to retaliate and so was more action than speech.
   
   1. 
      Could have said this was action and not speech and thereby regulated the behavior b/c free speech w/n apply. (Black/Douglas). Or could have said protected speech w/ clear and present danger.
      
   2. 
      Why doctrinally invent “fighting words”? B/c not really action but reaction to speech. To say not subject to free speech analysis if an action, then we d/n apply clear and present danger test.
      
2. 
   Gooding v. Wilson: 1972 use overbreadth to strike down the statute on its face
   
3. 
   Rosenfeld v. NJ, Lewis v. NO, Brown v. OK, 1972 (Motherfucker cases)(overbreadth analysis) cases involving insults by citizens directed at police. Court overturned convictions, can’t criminalize profanity that is not directed at a specific face to face person. Narrowed fighting words doctrine. Court imposing a degree of tolerance of personal ideas. Worry that cutting off vocabulary, cuts off convictions from the public domain.
   

Hate Speech: pp.1074-1077: High ct has taken view protective of hate speech.

1. 
   Natl Socialist Party v. Skokie, 1977: strikes down local laws to prevent Neo-Nazis from marching in Jewish neighborhood b/c the speech is protected, no clear and present danger & no incitement. Not covered by fighting words doctrine since not aimed at an individual. (accord Brandenburg). Involved permit system which is the worst thing as prior restraint. Discredits Beauharnais- group libel is not a ground for free speech abridgement. Tort Action for Trauma: if allowed could be equivalent to censorship. High burden to prove emotional distress and those who would be fearless about speaking would be those who could pay penalty of ED.
   
2. 
   Michigan, Stanford I and II (Private College speech codes)(overbreadth analysis): Court strikes down speech codes b/c could be used to chill speech. More concerned in university environment, d/n want to chill debate there. Too narrow a standard of prohibiting certain speech vs. certain ppl d/n take into account context. Remedy is poor policy b/c just expel or push out racist ppl instead of showing them and the community the problem w/ their speech.
   
3. 
   R.A.V. v. City of St. Paul, 1992: (as applied) strikes down conviction under statute that prohibits placing symbols of hate on public or private property. C/n have viewpoint based laws within areas of protected speech. Concedes that fighting words doctrine exists and is unprotected but still applies free speech analysis and must have evenhanded prohibition on fighting words. (Scalia).
   
   1. 
      Opinion widely criticized b/c might allow Title VII to be struck down. Act was dominantly conduct, not speech, but here opens up to constitutional scrutiny as speech. Why reach the constit question when there were non-const. grounds to strike this down (arson, trespass, threat)?
      
   2. 
      Could have been struck down on overbreadth grounds b/c law includes symbolic speech like flag burning which is permitted. (concurrence) Reaffirming Brandenburg: ct takes case out of fighting words doctrine, though it is directed at individuals. May render civil rights laws dubious if they are anchored in bias vs. minorities.
      
4. 
   Wisconsin v. Mitchell: aggravating penalties not struck down under RAV b/c case here is action and RAV limits speech.
   
5. 
   Virginia v. Black: (overbroad analysis) Struck down b/c statute prohibits cross burning which may also be general use of symbol for core political speech. Not just limited to cross-burning targeting and intimidating someone. Statute is inferring intimidation which must always be shown. Reaffirms Brandenburg. Cross burning can be prohibited if it’s threatening and is targeted form of terrorism through the fighting words doctrine, so d/n need statute.