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Fighting Words and Free Speech

Fighting Words and Free Speech

In the past few years on American college campuses we’ve seen canceled talks, violent protests, resignations of professors and administrators, and much more. But the events at Evergreen State College in the spring of 2017 still stand out as the most extreme of all the victimhood eruptions. There activists vilified and threatened Professor Bret Weinstein for objecting to a “Day of Absence” where whites were encouraged to leave campus. The administration sided with the activists, and at one point Weinstein had to teach his classes off campus when the police told him they couldn’t protect him. Eventually Weinstein left, but the college has faced declining enrollment and bad publicity since then.

But as Weinstein says in a recent Twitter thread, the college “refuses to comprehend what occurred, and so digs down, not out.”

Weinstein discusses a recent talk at Evergreen by civil rights attorney Alan Levine on “Campus Protests and the Fight against White Supremacy.” At the talk Levine portrayed attempts to silence and punish speech on campus not as illegal or even undesirable censorship, but as part of a noble struggle against racism. As Howard Dean did recently, in doing so he apparently smeared Nicholas and Erika Christakis and other critics of campus censorship.

But how did a civil rights attorney defend censorship? He did so by appealing to the Supreme Court’s “fighting words doctrine” and claiming that it allows universities to regulate offensive speech. Levine isn’t the first to invoke the fighting words doctrine in this manner, but he is wrong about what it says. And given the history of the doctrine, it’s also very strange to see the left invoking it.

“Fighting words” are indeed an official category of unprotected speech, along with obscenity, true threats, and some others. But the Chaplinsky v. New Hampshire decision in which the Supreme Court formulated the doctrine was the only time the Court has ever upheld a conviction for fighting words. In that case a man was convicted for insulting a police officer. This is hardly known as progressive decision, and subsequent rulings have undermined it enough that many scholars think of the fighting words doctrine as dead.

What’s also strange about the efforts of some contemporary activists to resurrect the fighting words doctrine is that the kinds of laws the Court was upholding in Chaplinsky have their origin in 19th-century honor culture. As Jeffrey Rosen explains, the laws worked as an indirect way of prohibiting dueling. Under the old honor code, certain kinds of insults demanded an aggressive response, so in addition to prohibiting the aggression, one way of preventing duels was to prohibit the insult. Legislatures thus passed laws not only against dueling, but also against provoking duels. They prohibited fighting words — words that in an honor culture would be expected to lead to violence.

Chaplinsky was a throwback to this era. As Rosen notes, even at the time of the decision, the culture had changed substantially:

The foundation of the fighting-words doctrine had collapsed long before the Supreme Court enshrined it as marginal constitutional law in 1942. The Chaplinsky Court defined fighting words as those that “men of common intelligence would understand would be words likely to cause an average addressee to fight.” In a culture based on honor, there was a consensus about the meaning and impact of fighting words. It was perfectly obvious that being called a liar would have provoked a 19th-century gentleman to insist on fighting a duel. But by the 1940s, no such consensus existed.

So the doctrine has seldom been used. And as the Foundation for Individual Rights in Education (FIRE) points out, “As the Law is understood today, it is obvious that a citizen calling a policeman a ‘fascist’ [the issue in Chaplinsky] is protected by the First Amendment.”

Now the culture is changing again. In The Rise of Victimhood Culture, Jason Manning and I argue that the new emerging victimhood culture among campus activists has at least one thing in common with the honor cultures of the past — sensitivity to slight. Thus we see current activists on the left repurposing Chaplinsky and the fighting words doctrine. Once again, certain kinds of offense just can’t be tolerated.

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