Harvey Silverglate on Disorderly Conduct As 'Fighting Words'

Jacob Sullum | July 29, 2009

Writing in Forbes, Boston civil liberties lawyer (and Reason contributor) Harvey Silverglate notes that the "fighting words" doctrine, the only remotely plausible rationale under which arresting someone for talking back to a cop could be deemed constitutional, appears to be "a dead letter." In 1942 the U.S. Supreme Court upheld the conviction of Walter Chaplinsky for violating a New Hampshire law that made it a crime to direct "any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place" or to "call him by any offensive or derisive name." Chaplinsky, a Jehovah's Witness, had been arrested for riling up a crowd in Rochester by denouncing organized religion as "a racket"; on the way to the police station, he compounded the offense by calling the city marshal "a goddamned racketeer" and "a damned Fascist," adding that "the whole government of Rochester are Fascists or agents of Fascists." Rejecting Chaplinsky's constitutional challenge, the Court declared that the First Amendment does not protect "insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

But "a conviction for the use of such language has never since been upheld," Silverglate writes. Just a year later, in fact, the Court held that the word fascist, the very epithet that got Chaplinsky in  trouble, was "part of the conventional give-and-take in our economic and political controversies." In subsequent cases, the Court overturned the disturbing-the-peace conviction of a suspended Catholic priest whose anti-Semitic tirade drew a violent response from a hostile crowd in Chicago and concluded that the First Amendment protects the right to wear a jacket bearing the slogan "Fuck the Draft" in the Los Angeles County Courthouse.

Even if the fighting words doctrine were alive and well, applying it to situations like Henry Louis Gates' hostile encounter with the Cambridge police would be difficult. As Silverglate notes, police officers are trained and expected to restrain themselves in the face of verbal abuse, so it's problematic to cite their possibly violent reaction to a citizen's lippiness as grounds for arresting him. Under that standard, public speech would be limited to what the most sensitive and impulsive police officers are prepared to tolerate. The Massachusetts Appeals Court addressed this very issue in a 2003 case that involved a man whose "disorderly conduct" was limited to his own property, with an audience consisting entirely of police officers (a decision I quoted in today's column about the abuse of disorderly conduct laws):

As recognized in the commentaries to the Model Penal Code, behavior that has an impact only upon members of the police force is significantly different from that affecting other citizens in at least two respects: it is an unfortunate but inherent part of a police officer's job to be in the presence of distraught individuals; and, to the extent that the theory behind criminalizing disorderly conduct rests on the tendency of the actor's conduct to provoke violence in others, "one must suppose that [police officers], employed and trained to maintain order, would be least likely to be provoked to disorderly responses."

To successfully prosecute Gates for disorderly conduct and withstand a First Amendment challenge, the Middlesex County district attorney would have had to show that civilian onlookers were on the verge of violence as a result of the professor's comments. The difficulty of making that case (along with Gates' connections) helps explain why the charge was speedily dropped. Silverglate thinks that outcome, though good for Gates, may be bad for other, less-famous citizens arrested for contempt of cop:

Had Professor Gates and his lawyers raised a First Amendment defense, the defendant almost certainly would have prevailed—if not at the trial court level, then in the appellate courts—and the scope of the "disorderly persons" statute would have been severely limited in all future citizen-police confrontations. The future use of handcuffs to penalize a citizen mouthing-off against official authority would have been, at long last, curtailed. Perhaps the common good would have been better served had the case proceeded to trial after all.

Comments

Jordan|7.29.09 @ 1:16PM|#

Isn't Silvergate also an attorney for FIRE? I'm assured by liberals that FIRE is a conservative organization only interested in defending conservatives.

|7.29.09 @ 1:20PM|#

Fuck the draft.

Gunboat Diplomacy|7.29.09 @ 1:21PM|#

PLEASE MAKE THIS GATES SHIT STOP.

AAAARRRRRRRRRRRRGGGGGGGGGGGGGGGGG

BTW, what's Palin's take on this Gates thing?

Danny Haszard|7.29.09 @ 1:37PM|#

Background and comment on the Jehovah Witness Walter Chaplinsky incident.

Danny Haszard comment to above--He (the Jehovah's Witness) spewed this venom, by the way, in 1942, when millions of Americans were busy fighting and dying in a war against WW2 fascists.

That's right and these brave American allied men and women died to save and rescue the Jehovah's Witnesses who were interned in the WW2 Nazi concentration camps.(They were in the camps,for their leader anti-Semite Joseph Rutherford had double crossed Hitler.)

kilroy|7.29.09 @ 1:37PM|#

I was wondering if one of the reasons all the bogus disorderly conduct charges got dropped before trial was to ensure it never got to a court that could limit its use.

The Angry Optimist|7.29.09 @ 1:43PM|#

Danny - so what's your point? Brave men in WWII were fighting for the right to say what you like.

cmace|7.29.09 @ 1:44PM|#

"Background and comment on the Jehovah Witness Walter Chaplinsky incident."

So we trash the Constitution to fight fascism?

The guy was a rabble rouser.

|7.29.09 @ 1:46PM|#

Man, if the editors could figure out a way to create a post that covers (and even relates) Palin, Gates, the Ron Paul newsletters, Obama's birth certificate, the Kochtopus, and Michael Bay, they could probably retire on the ad page hit proceeds.

Think harder, editors!

|7.29.09 @ 1:56PM|#

2009 Jehovah witnesses are still intrusive bigots demanding their right to bash every other belief system but their own and coming to our doorsteps with it.

|7.29.09 @ 1:56PM|#

You left out flesh eating zombie robots, Mister Epi. That's the money shot.

|7.29.09 @ 1:57PM|#

Reason is Gatesapoluza, Billy Beane and Birthers today. You would think that maybe they would find something more interesting to write about.

|7.29.09 @ 2:00PM|#

Wow, a post by Sullum that is not full of ad hominems against police, or a certain police officer! Who'd have thunk Sullum could write a reasoned objection? This is only Reason after all, but his other posts where he makes assumptions and projects emotions onto others are much more fun.

|7.29.09 @ 2:06PM|#

It always comes around to the zombies, EAP. No need for them to seed it that way.

Zeb|7.29.09 @ 2:07PM|#

"millions of Americans were busy fighting and dying in a war against WW2 fascists."

All the more reason for a crazy person to rail against the fascists he sees at home. What is your point, Danny? It is OK for the court to deny people's rights because someone else is fighting and dying to preserve those rights?

|7.29.09 @ 2:14PM|#

"Man, if the editors could figure out a way to create a post that covers (and even relates) Palin, Gates, the Ron Paul newsletters, Obama's birth certificate, the Kochtopus, and Michael Bay, they could probably retire on the ad page hit proceeds."

I am working on one. Since Andrew Sullivan is the is wierdly obsessed with both Palin and the birthers, I think it has to involve him and some reference to barebacking. I think we are getting close to a breakthrough. The ultimate hit and run post may be at hand.

T|7.29.09 @ 2:15PM|#

Horse still dead, the beatings will continue.

Hey, is that because it tenderizes the horsemeat before we make the steaks?

|7.29.09 @ 2:16PM|#

yawn

|7.29.09 @ 2:23PM|#

Chaplinsky, a Jehovah's Witness, had been arrested for riling up a crowd in Rochester by denouncing organized religion as "a racket"

Oh sweet irony, you are ever present.

|7.29.09 @ 2:25PM|#

Fighting words may be dead in order to get a conviction but they are alive and well as a reason not to convict a cop of battery when he is the "victim" of "fighting words"

The defense claimed the fight was caused by one of the accused mocking Powers as he cried over his father's death three months earlier.

...

In his 30-page ruling Gainer noted that one of the accusers was said to have called one of the officers a "p----" [pussy] and another said an officer needed "to have his ass kicked," though they deny those charges. Gainer also wrote that fighting words have been ruled to have weight in Illinois courts if there is an "implicit or implied threat" which "can lead to mutual combat," according to the Sun-Times.

|7.29.09 @ 2:33PM|#

Zeb says--"All the more reason for a crazy person (the JW Chaplinsky )to rail against the fascists he sees at home."

HUH?

Yup that's what your doing

|7.29.09 @ 2:34PM|#

From the post:

Chaplinsky, a Jehovah's Witness, had been arrested for riling up a crowd in Rochester by denouncing organized religion as "a racket"; on the way to the police station, he compounded the offense by calling the city marshal "a goddamned racketeer" and "a damned Fascist," adding that "the whole government of Rochester are Fascists or agents of Fascists."

I thought truth was a defense in free speech cases.

;P

|7.29.09 @ 2:41PM|#

That's defamation, dude.

|7.29.09 @ 3:57PM|#

PL

Sorry, forgot that speaking the truth is actually treason.

|7.29.09 @ 4:19PM|#

I think Jody has a problem with the witnesses of Jehovah.

|7.29.09 @ 4:34PM|#

I got problems with them too false prophets,abusive to the flock, blaspheme.

T|7.29.09 @ 5:08PM|#

I got problems with them too false prophets,abusive to the flock, blaspheme.

Send 'em to Ireland for prosecution if you're so bloody omnipotent.

Mad Max|7.29.09 @ 8:14PM|#

Episiarch,

Sarah Palin, the new editor of the Ron Paul Report, claims in a front-page editorial in the controversial newsletter that the cop who arrested Gates was an agent of the Koch political machine and Michael Bay to suppress the truth about President Obama's birth certificate.

The zombies are already present and accounted for on the comment threads.

Jerry Jones|7.29.09 @ 8:49PM|#

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|7.29.09 @ 9:24PM|#

Aresen,

I had heard once that the English system didn't recognize the truth defense to defamation, but I think I heard wrong after looking it up. That saddens me somehow.

Ron Paul Voter|7.30.09 @ 9:19AM|#

The arrest was unconstitutional under the precedent set in Houston vs. Hill:

The Court again struck down the conviction of an individual for making offensive comments to a police officer in 1987 in City of Houston v. Hill, Raymond Wayne Hill was arrested after he yelled at a police officer who was questioning his friend. Hill said to the officer: "Why don't you pick on somebody your own size?"

The officer arrested Hill for violating a city law prohibiting a person from opposing, molesting or abusing, or interrupting a police officer during his duties.

After Hill was acquitted in municipal court, he filed a civil rights lawsuit. In his lawsuit, he asked that the federal courts declare the ordinance unconstitutional. The case eventually reached the U.S. Supreme Court which sided with Hill. Before the high court, the city argued that the ordinance prohibited "core criminal conduct."

The Supreme Court disagreed, finding that the ordinance dealt with speech. "Contrary to the city's contention, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers," Brennan wrote.

"The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state," Brennan wrote.

Brennan determined that the law was not narrowly tailored to prohibit disorderly conduct or fighting words. The court concluded that the ordinance "criminalizes a substantial amount of constitutionally protected speech, and accords the police unconstitutional discretion in enforcement."

http://www.firstamendmentcenter.org/speech/personal/topic.aspx?topic=fighting_words