Category: Politics & Current Events
Part One: The federal government funds a study to monitor bad political speech on Twitter:
The National Science Foundation is financing the creation of a web service that will monitor “suspicious memes” and what it considers “false and misleading ideas,” with a major focus on political activity online.
The “Truthy” database, created by researchers at Indiana University, is designed to “detect political smears, astroturfing, misinformation, and other social pollution.”
Part Two: The federal government ignores, for a generation, its statutory obligation to gather and report on data about excessive force used by law enforcement:
But in the 20 years since the law went on the books, very little has happened and no one's holding the AG or any of the law enforcement agencies below him accountable for the lack of input.
Last Friday, as the killing of Mike Brown continued to roil Ferguson, Missouri, the Ferguson Police Department released a police report and surveillance video showing a young man shoving a protesting convenience store clerk and leaving with merchandise. Mike Brown's family lawyer confirmed that the video showed Brown, but decried its release as an irrelevant smear. Later Ferguson's police chief later admitted that officer Darren Wilson did not seek to detain Brown based on the robbery, but because Brown was walking in the street.
Would the alleged robbery1 matter, in any case brought against Darren Wilson for the death of Mike Brown?
It might matter legally, but only for narrow reasons. It does matter practically, but shouldn't.
I was all set to write a post making this point: it's offensive and irrational for the police to say "we have to protect the identity of a cop who shoots a citizen, for safety" when the criminal justice system routinely names suspects and defendants — either openly or by leak. People are accused of horrible crimes all the time, and does the system hold back their names out of fear that they or their families will face retribution? No.
But Kevin Williamson has already done a great job writing that post:
Here’s a microcosm of the relationship between state and citizen: We know the names of the nine people charged with felonies in the Ferguson looting, but not the name of the police officer at the center of the case.
Here's what I want to add to Kevin's observations: this particular piece of special pleading for cops is not unique; it's part of a pattern.
If you are arrested for shooting someone, the police will use everything in their power — lies, false friendship, fear, coercion — to get you to make a statement immediately. That's because they know that the statement is likely to be useful to the prosecution: either it will incriminate you, or it will lock you into one version of events before you've had an opportunity to speak with an adviser or see the evidence against you. You won't have time to make up a story or conform it to the evidence or get your head straight.
But what if a police officer shoots someone? Oh, that's different. Then police unions and officials push for delays and opportunities to review evidence before any interview of the officer. Last December, after a video showed that a cop lied about his shooting of a suspect, the Dallas Police issued a new policy requiring a 72-hour delay after a shooting before an officer can be interviewed, and an opportunity for the officer to review the videos or witness statements about the incident. Has Dallas changed its policy to offer such courtesies to citizens arrested for crimes? Don't be ridiculous. If you or I shoot someone, the police will not delay our interrogation until it is personally convenient. But if the police shoot someone:
New Mexico State Police, which is investigating the shooting, said such interviews hinge on the schedules of investigators and the police officers they are questioning. Sgt. Damyan Brown, a state police spokesman, said the agency has no set timeline for conducting interviews after officer-involved shootings. The Investigations Bureau schedules the interviews at an “agreeable” time for all parties involved, he said.
Cops and other public servants get special treatment because the whole system connives to let them. Take prosecutorial misconduct. If you are accused of breaking the law, your name will be released. If, on appeal, the court finds that you were wrongfully convicted, your name will still be brandished. But if the prosecutor pursuing you breaks the law and violates your rights, will he or she be named? No, usually not. Even if a United States Supreme Court justice is excoriating you for using race-baiting in your closing, she usually won't name you. Even if the Ninth Circuit — the most liberal federal court in the country — overturns your conviction because the prosecutor withheld exculpatory evidence, they usually won't name the prosecutor.
And leaks? Please. Cops and prosecutors leak information to screw defendants all the time. It helps keep access-hungry journalists reliably complaint. But leak something about an internal investigation about a shooting or allegation of police misconduct? Oh, you'd better believe the police union will sue your ass.
Cops, and prosecutors, and other public employees in the criminal justice system have power. It is the nature of power to make people believe that they are better than the rest of us, and entitled to privileges the rest of us do not enjoy.
The question is this: are we so addled by generations of "law and order" and "war on crime" and "thin blue line" rhetoric that we'll accept it?
One day I saw a farm that had no fence. I saw sheep and long neck sheep and goats and geese. In a corner of the farm was a tin tub up side down on a flat form, and a front eyes sat on the tub and watched.
The front eyes was like the man but not like the man. I went to him and asked why all the sheep and long neck sheep and goats and geese were there in the field.
They chose to make me their ruler, he said. I take care of them and do what is right. You are a big, strong bull. I will make you my side bull and you can rule them with me!
I asked, What is rule?
The front eyes said, Watch. So I stood to a side of the flat form.
After some time a goose came up and said, I do not get enough food. I think you should take some of the food from the sheep and the goats and give it to us geese and the long neck sheep. They are strong and we are not strong.
The front eyes said to the goose, You know, you are right! Then the goose left.
Later a goat came up and said, I do not get enough food. You should take some from the long necks and give it to us goats and sheep. They are swift and we are slow.
The front eyes said to the goat, You know, you are right! Then the goat left.
I said to the front eyes, That is rule? You said this and also not this!
The front eyes said to me, You know, you are right!
Then I left the farm that had no fence. I do not want to rule.
[ sometimes when ] we were sure of our [ covertly gained information ], we couldn't act because that would reveal "sources and methods." This is probably the most frustrating explanation. Imagine we are able to eavesdrop on al-Assad's most private conversations with his generals and aides, and are absolutely sure of his plans. If we act on them, we reveal that we are eavesdropping. As a result, he's likely to change how he communicates, costing us our ability to eavesdrop. It might sound perverse, but often the fact that we are able to successfully spy on someone is a bigger secret than the information we learn from that spying.
This dynamic was vitally important during World War II. During the war, the British were able to break the German Enigma encryption machine and eavesdrop on German military communications. But while the Allies knew a lot, they would only act on information they learned when there was another plausible way they could have learned it. They even occasionally manufactured plausible explanations. It was just too risky to tip the Germans off that their encryption machines' code had been broken.
The World War II bit isn't news to anyone who reads history (or, for that matter, Neal Stephenson novels).
I had an insight just now.
We know that the NSA collects all sorts of information on American citizens. We know that the FBI and the CIA have full access to this information. We know that the
DEA also has full access to that data. And we know that when the
DEA busts someone using information gleaned by the electronic panopticon of our internal spy organization, they take pains to hide the source of the information via the subterfuge of parallel construction.
The insight is this: our government is now dealing with the citizenry the same way that the British dealt with the Nazis: treating them as an external existential threat, spying on them, and taking pains to obfuscate the source of the information that they use to target their attacks.
Yeah, Godwin's law, whatever, whatever. My point is NOT that the NSA is the same as the Nazi party (in fact, my argument has the NSA on the opposite side). My point is that the government now treats ordinary civilians as worthy of the same sort of tactics that they once used against the Nazis.
This isn't really shocking, given that I think that the government has long been at war with the populace…but it's still a somewhat stark distillation of the trend.
With supporters pointing to Second Amendment rights, the Florida House on Tuesday gave final approval to a bill that seeks to prevent insurers from denying coverage or increasing rates based on customers owning guns or ammunition.
. . .
House members voted 74-44, along party lines, to approve the bill (SB 424). The Senate also passed the National Rifle Association-backed bill last month, meaning the measure is ready to go to Gov. Rick Scott.
The bill would apply to property and automobile insurers and add language to part of state law that deals with “unfair discrimination.” As an example, the bill would seek to block insurers from refusing to issue policies because of customers’ lawful ownership or possession of firearms. Similarly, it would bar them from charging “unfairly discriminatory” rates based on gun ownership or possession.
The Republican party attempts, with mixed success, to brand itself as the party of small government, reduced regulation, and free markets. This bill illustrates why that branding is not entirely successful — because too many Republicans, given a favored issue (Guns! Drugs! Crime!), are as unabashedly nanny-statish as Bloomberg on his most Big-Gulp-decrying day.
The proposition is, apparently, that because gun ownership is a cherished right under threat, private insurance companies should be regulated and precluded from charging gun-owning customers more based on the insurance companies' risk assessment. I suppose this is a coherent argument taken in isolation; it's just not consistent with economic conservatism. Saying "greedy insurance companies should be regulated and not permitted to charge what they want, because the free market isn't working" sounds, instead, more like a classic progressive position.
Consider, for instance, the position of Republican state representative Matt Gaetz:
But bill sponsor Matt Gaetz, R-Fort Walton Beach, said Floridians have a constitutional right to bear arms, and even one case of insurers taking action because of gun ownership is “too much.”
“How much discrimination based on the exercise of a constitutional right is tolerable?” Gaetz asked.
Gaetz apparently believes that a private insurer charging a customer more based on its own risk assessment is a violation of that customer's constitutional right to do whatever he or she wants. So, Mr. Gaetz: would an insurance company that offers policies covering defamation be violating my First Amendment rights if it charged me — a mouthy blogger — more than a homebound shut-in who never utters or writes a word? Does an insurance company interfere with my right to procreate if it charges me more for a family health plan than an individual one? Should private insurance companies assume the risk of our exercises of constitutional rights? If the government disagrees with the private insurance market's risk assessment, should it intervene? Is it a good thing to increase the power of government bureaucracies and the courts to regulate whether insurance rates are "discriminatory?" Is the insurance market broken and incapable of addressing anti-gun-bias by driving customers away from gun-penalizing insurers and to gun-friendly insurers? I can see why someone would say those things, Mr. Gaetz. I just find them difficult to reconcile with your other positions:
Healthcare and Insurance
Matt Gaetz believes that health care decisions should be made by doctors and patients, not the government. That’s why Matt Gaetz wants to make sure that you can keep the health insurance you currently have. He will fight to keep health care costs down by eliminating junk lawsuits and fraud in the system.
This is not new. Florida is the state that passed a patently unconstitutional law purporting to regulate what doctors could ask their patients about guns. Florida is the state that decided the right to carry a gun trumps the right of private property owners to control their property.
Treating guns as an asterisk to principles — treating the Second Amendment as if it empowers the government to regulate private conduct, rather than just limiting the government — is incoherent and un-conservative.
Today's guest author, Jim Ardis, is the Mayor of Peoria, Illinois.
Ladies and gentlemen, the rule of law is what separates us from animals and barbarians and people from Joliet. It is that rule of law that I now invoke to prevent so-called "satire" from being used to abuse my person and position.
By now you have heard that someone pretending to be me on Twitter has breached the peace by suggesting that I am some sort of corrupt, disturbed drug fiend. The statements attributed to me have been scandalous, personally hurtful, and textually ambiguous.
Let me clear some things up right now:
- I am devoted to my loving family and have not "shacked up" in a motel with a so-called "notorious furry." I do not visit motels because their low thread-count sheets make my skin chafe. I have not been observed at any motels and if I had been it would have been to visit with community leaders about growing jobs in Peoria's business climate. I had a soiled fox costume in my car because I was going to participate in a pantomime for children at a local cancer hospital. My staff's nickname for me is "Swift," not "Yiff."
- I have not hired any sex workers. I have nothing against them, and feel our system should do a better job protecting them from harm and providing them with opportunities to better themselves and stop being such fucking liars about important people.
- I do not have a "drug problem." Drugs are a scourge of impoverished, powerless, and dark people everywhere. I am fortunate to be affluent, to have friends, and to know many people in the criminal justice system. Throughout my career I have strongly advocated that people, including myself, avoid the ruinous consequences of drugs.
- Interns hallucinate and are prone to sudden unconsciousness. It's a thing. You can Google it.
- I have not accepted cash in low denominations for political favors, as has been claimed. That's ridiculous. I am reliable and honest. Look — I have a lapel pin!
People may believe that they can get away with mocking me or saying unpleasant things about me because of the "First Amendment." They are mistaken. Here in Peoria we have a system that respects the law — and respecting the law means respecting the Office of Mayor. When I was victimized by satire — abused by someone with no regard to my right to self-esteem and dignity — my good friend Peoria Police Chief Steve Settingsgaard sprang into action. Could you get the police to devote substantial resources to investigating someone being making fun of you on the internet? Probably not — but frankly you don't carry the burdens of state that I do. Uneasy lies the head that wears the crown, and all that.
With the help of Steve, your tax dollars, scores of police hours, and other resources, we were able to present search warrant applications. First we got a warrant for Twitter from Judge Kirk D. Schoenbein. Good old Kirk understood that "satire" is no excuse for disrespect here in Peoria. Then we went to Judge Lisa Wilson to force Comcast to cough up the subscriber information associated with the Twitter account. Lisa gets it too: who does this punk think he is, making fun of the mayor? Finally we went to Judge Kim Kelley with an application for a warrant to search this asshole's home, and to toss it for drugs while we were at it. And what do you know? They found drugs! Time for this little shit to face some real consequences.
You hear all the time about judges getting all bent out of shape about the First Amendment. So why did three judges issue warrants here? Well first of all, they all understood that as the Mayor of Peoria I am an important man, and my reputation is something that should be protected under the law. Second, I made it clear in the warrant application how just plain mean some of those "satirical" tweets were. Now, some eggheads out there might say that the warrant suggested, on its face, that the tweets were not meant to be taken seriously, and that there's no articulated basis to search for drugs in the warrant. You just remind those eggheads that a Mayor in a town like Peoria can get things done. I know people, and people know me, and when I want a warrant, then by God I get a warrant. I know all of these judges. This is exactly why you cultivate relationships, my friends. That kid in your fourth grade class eating paste and wetting himself during story time may seem worthless to you now, but you never know when he's going to wind up having the power of life and death over people because he's got an inoffensive name and photographs well.
In conclusion: this is a case of the system working the way it ought to. Someone disrespected me, a man of respect. The system turned around and bit him in the ass. That will teach you to think twice about mouthing off about people like me, won't it?
I speak now to the minority:
I apologize for not posting more. I've had many interesting ideas swirling around my head, each of them the potential kernel of a good blog post.
…but I've strangely lost the urge, energy, or whatever to turn ideas into bytes-on-the-page.
I still hope to sit my ass down and generate some content at some point, but until then, feel free to watch this video of me before I was expelled from Japan and emigrated to America. My opinions have changed not a whit.
The Department of Commerce has announced that it will soon abdicate its responsibility for maintaining the internet's Domain Name System, the directory that allows translation of a plain English (or Russian, or Turkish) term like popehat.com into the string of numbers and periods that are this site's actual address. DNS is the internet's central nervous system, to analogize crudely. If a site is removed from DNS, it may as well no longer exist.
The goal, we're told, is to spread governance of the internet from a United States agency to set of "stakeholders" from across the "global internet community." And that's what should worry everyone in the "global internet community" who is concerned with free speech. Unlike the Department of Commerce, the "global internet community" and its "stakeholders" are not constrained from abridging the freedom of speech.
Readers may recall the case of American talk radio host Glenn Beck, who in 2009 sued the owner of the parodic website GlennBeckRapedAndMurderedAYoungGirlIn1990.com, in the World Internet Property Organization (a United Nations body), arguing that the site's name was defamatory, and that it infringed Beck's trademark in the name "Glenn Beck." (The parody countered Beck's style of argument in which he demands opponents prove a negative: "Barack Obama must prove he wasn't in Indonesia on August 4, 1961!") How do we know Glenn Beck didn't rape and murder a young girl in 1990, after all? Beck hasn't proven he didn't. We have only his word to rely upon. The World Internet Property Organization, to its credit and thanks to the commendable advocacy of defense attorney Marc Randazza, denied Beck's claims, finding the assertion contained in the site's name to be an obvious parody that only a dipshit would credit as true.
What's telling about the Beck case is that Beck, for all his professed faith in the United States Constitution, chose not to file his claim in an American court. Beck certainly could have done so: the defendant, like Beck, was an American citizen and subject to the jurisdiction of United States courts. But the First Amendment to the United States Constitution provides broad protections to free speech, some of the broadest in the world, constraining courts and government agencies alike from infringing speech. And a website's name, just like its text, is speech.
No, Beck, or his attorneys, assumed he'd get better treatment from a United Nations agency in his efforts to quash free speech than he'd get in an American court. And for good reason: United Nations agencies are not constrained by the First Amendment. And so, coming back round to the "stakeholders" of the "global internet community," to what legal constraints will they be subject? And to whom will they answer? The Constitution of the People's Republic of China, for instance, promises that:
Citizens of the People's Republic of China enjoy freedom of speech, of the press, of assembly, of association, of procession and of demonstration. … Citizens of the People's Republic of China enjoy freedom of religious belief.
Under the new internet order, Sina Weibo is undoubtedly a major "global stakeholder" in the internet. Does anyone believe that a representative of Sina Weibo, which already censors its users at the behest of its government, would not vote to obliterate a website glorifying Tank Man?
Of course China is not the only global stakeholder. There are plenty of European nations which also have a stake in the internet, such as the Russian Federation. Perhaps the most distinguished Russian holding a stake in the internet is Evgeny Kaspersky, the famed security expert, whose products are used worldwide. Another famed Russian on the internet is Garry Kasparov, grandmaster of chess and political dissident. For all of Kaspersky's integrity, does anyone doubt that if Kasparov created a website parodying Vladimir Putin, perhaps one called VladimirPutinOrderedTheMurderOfAnnaPolitkovskaya.com, Kaspersky would face intense pressure to vote that it be deleted as defamatory, an offense against the majesty of the Soviet Union Russian Federation?
Of course there are plenty of enlightened non-European countries whose citizens are global stakeholders, such as Thailand. Guarantors of international human rights, including the Democratic Republic of Congo, Egypt, Pakistan, Saudi Arabia, Sudan, and Zimbabwe.
The Department of Commerce assures us that only private global stakeholders will be nominated to hold a stake in tomorrow's internet, and therefore to make decisions on who (if anyone) gets to have domains ending in suffixes such as .bible or .gay or .wine. We're assured that the new regime will be run much along the lines of the United Nations Internet Governance Forum (which coincidentally is holding its annual meeting for 2014 in Istanbul). But each of those stakeholders is, at least until we have anarchist floating cities, also a stakeholder in some government or state. In a lot of those states, the government considers itself a "stakeholder" in its citizens, who'll know doubt vote accordingly. And while Commerce promises us that it won't support government involvement in the new DNS regime, once control has passed beyond Commerce, who's to say conditions won't change?
None of this is to suggest that the United States is somehow "deserving" of internet governance, that the internet is American property, or the American government's hands are clean. They're not. I could be reasonably content with an internet whose administration was controlled by other constitutional democracies, such as Australia, Costa Rica, Japan, or even the United Kingdom.
But it won't be. We've seen the others, and they're worse. The system isn't broken, and at least now there are some free speech constraints on the entity ultimately responsible for global DNS.
If you care about free speech on the global internet, not just your provincial American corner of it, consider writing or calling your Congressman and Senators, and asking them to assert their authority against this ill-advised decision.
On the topic of gay marriage, I'm pretty old fashioned.
…by which I mean I believe what goes on in a marriage contract is between two or more people, their lawyers, and their goðar / non-governmental polycentric legal service providers.
As a non aligned bystander in the left-vs-right culture wars, I'm not as much a reflexively huge fan of George Takei as some people are.
Then I saw this:
I take no solace or joy in this man's passing. We will not dance upon his grave, nor stand vigil at his funeral holding "God Hates Freds" signs, tempting as it may be.
He was a tormented soul, who tormented so many. Hate never wins out in the end. It instead goes always to its lonely, dusty end.
Well done, sir.
The most beautiful land I've ever stormed
Crimea, Crimea, Crimea, Crimea….
All the beaches and dachas and woods where my army swarmed
Crimea, Crimea, Crimea, Crimea….
I've just held a vote in Crimea,
And suddenly I've shown
How vain a threat or drone
Take by force, and we're there in person.
By decree, and we're edging toward Kherson….
I'll keep occupying Crimea!
The most beautiful land I've ever stormed:
Bring a cleric.
Murder was the case.
No, wait. Mockery was the case.
Somebody was mocking Rhode Island state Representative Scott J. Guthrie. And not even because of his 'stache! No, someone put up a clearly satirical Facebook page about Guthrie, mocking him and attacking his political positions.
Guthrie, as an adult, a responsible citizen, and a government official who cares about the public fisc, laughed it off and talked to reporters about how it demonstrated that his ideas are right.
No, wait. That's the bizarro-America response.
This is the real America — the America of butthurt, the America of snivelers, the America of "I'm entitled not to be offended," the mewling o-help-me-nanny-state America.
So Scott Guthrie went to the cops, and the cops conducted a full investigation — including subpoenas — before realizing that putting up a satirical Facebook page is not a crime, even in a world where we have broad and vague and unprincipled "cyber-harassment" laws.
How extensive was the investigation? Consider the police report yourself.
It turned out that the satirical page was created by Republican Sen. Nicholas Kettle. Guthrie is a Democrat. Kettle, naturally, faced no official consequences; the young communications director who helped him make the page was fired. The communications director used legislative resources, a computer, to create the page, you see. There was no consequence for Guthrie using substantial law enforcement resources to investigate being made fun of.
Kudos are due to law enforcement for resisting the demands of a state legislator:
But on advice of a lawyer in Attorney General Peter Kilmartin's office, they concluded the creation of this fake Facebook page did not constitute "cyber-harassment."
After reviewing the case, "I was informed that a majority of the posts were constitutionally protected activity," and the others "would not have caused substantial emotional distress which is another required element of the crime," the lead detective, Kevin Harris, wrote in a report obtained by The Journal on Tuesday.
After speaking to Assistant Attorney General Ronald Gendron, "it has been determined that there is insufficient evidence to go forward with charges at this time," Harris wrote.
It would have been nice if they had come to that obvious assessment earlier, after a smaller expenditure of taxpayer funds. In their defense, they do far better than most.
But Guthrie may not be done:
But the case may not be over. Kilmartin spokeswoman Amy Kempe said Gendron provided an "initial assessment," but the attorney general intends to review the case. Guthrie said he may now take his complaint to federal authorities.
Scott Guthrie, you petulant, pusillanimous prat, you're a disgrace. You're a disgrace to adulthood. You're a disgrace to American citizenship. You're a disgrace to public service. Stop spending the taxpayers' money as an unguent for your butthurt and react like a grown up with some grasp of American values. Retaliate with a page about Kettle. It should be easy. Dude looks like a spotty douchebro.
(Hat tip to Nicholas Cote.)
There's a traditional column you see repeated two or three times per year. The author and publication may vary, but the basic structure never changes: the column asserts that the First Amendment is not absolute, and that other countries prohibit various types of speech that offend or wound feelings, so Americans ought to as well.
This time the venue for the column is the Daily Beast, and the author is Fordham University Professor Thane Rosenbaum. Professor Rosenbaum wants us to follow the example of France and Israel and suppress more ugly speech, and argues we should rely on unspecified studies that show that speech can hurt.
There is nothing new under the sun. Professor Rosenbaum's argument resembles that of Anthea Butler or Eric Posner. In my series "A Year of Blasphemy," I have examined worldwide blasphemy prosecutions over two years to demonstrate that the norms these academics wold have us adopt are typically used to oppress religious minorities and the powerless under the thin guise of solicitude for feelings.
Scott Greenfield has already cheerfully demolished Professor Rosenbaum's very silly column. I will only address it to discuss just two of the common legal tropes Professor Rosenbaum clumsily deploys in support of an apologia for broad censorship.
First, there's the shoutout to Oliver Wendell Holmes, Jr.:
There is no freedom to shout “fire” in a crowded theater.
Back in 2012 I wrote at length about the context for that Holmes quote. First of all, Professor Rosenbaum — like most Holmes fans — truncates the quote to render it vague. What Holmes actually said was "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
But more importantly, Professor Rosenbaum — like most who misquote Holmes — ignores the context. To summarize rather than make you read my lengthy post: (1) Holmes made the analogy in deciding a shockingly brutal and censorious series of cases that are no longer good law, in which the Supreme Court gave the government free reign to jail people who criticized or agitated against American participation in World War I; (2) Holmes later repented of that position, undermined that line of cases through decisions he wrote or joined, and articulated a far more speech-protective line of authority that remains the law today, and (3) if you are fond of Holmes' rhetorical flourishes, you ought to know he was the sort of statist asshole who said things like "three generations of imbeciles are enough" whilst upholding the right of the government forcibly to sterilize people deemed undesirable.
In other words, when you throw around the "shout fire in a crowded theater" quote, you're echoing the rhetoric of a tyranny-cheerleader whose logic was later abandoned by everyone, including himself.
Next, Professor Rosenbaum invokes another favorite trope, "fighting words":
Certain proscribed categories have always existed—libel, slander and defamation, obscenity, “fighting words,” and the “incitement of imminent lawlessness”—where the First Amendment does not protect the speaker, where the right to speak is curtailed for reasons of general welfare and public safety.
The "fighting words" doctrine gets thrown around a lot to justify broad speech restrictions. The people who invoke it rarely tell you — and may not know themselves — how narrow it is, and how the courts have refused to extend it.
The "fighting words" doctrine comes from the Supreme Court's decision in Chaplinsky v. New Hampshire in 1942. Fans of censorship like to quote the broader language of the opinion:
There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words — those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace.
But censors generally don't quote the later language of the opinion narrowing the First Amendment exception:
It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. . . . A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. . . . .
Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
This is the heart of the "fighting words" doctrine — a prohibition on face-to-face insults likely to cause a brawl. In that sense, it's entirely consistent with the Supreme Court's subsequent clear and present danger doctrine, in which advocacy can only be punished when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action."
People who cite the "fighting words" doctrine never tell you how it has been treated in the courts for the last half-century. The Supreme Court has refused every opportunity to rely upon it to uphold censorship, and in fact has consistently narrowed it. It was already narrowed by 1970 in Cohen v. California, when the Court refused to use it to justify punishment of a man who wore a jacket bearing the words "Fuck the Draft." The Court made it clear that the "fighting words" doctrine was narrowed to direct confrontations likely to provoke violence:
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. Chaplinsky v. New Hampshire, 315 U. S. 568 (1942). While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v. Connecticut, 310 U. S. 296, 310 U. S. 309 (1940). No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State's police power to prevent a speaker from intentionally provoking a given group to hostile reaction. Cf. Feiner v. New York, 340 U. S. 315 (1951); Termniello v. Chicago, 337 U. S. 1 (1949). There is, as noted above, no showing that anyone who saw Cohen was, in fact, violently aroused, or that appellant intended such a result.
Later, in Texas v. Johnson, the Supreme Court refused to use the "fighting words" doctrine to justify a ban on flag burning:
Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). No reasonable onlooker would have regarded Johnson's generalized expression of dissatisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs.
These cases reveal a common thread running through Professor Rosenbaum's familiar defense of censorship. The line of Holmes decisions he references upheld the government's right to suppress draft resistors and war critics. The cases narrowing the fighting words doctrine — Cohen and Johnson — involved government attempts to suppress criticism of its policies. Professor Rosenbaum and his ilk may attempt to convince you that their project is to defend the feelings of religious and ethnic minorities and the dispossessed. But the most charitable interpretation is that they are the useful idiots of tyranny. Just as the blasphemy norms they endorse are employed to abuse minorities and the powerless, the justifications for censorship they tout have been used to suppress criticism of the state and its power. Read Professor Rosenbaum's closing, and contemplate how his approach to speech would be used by any government we have ever known:
Free speech should not stand in the way of common decency.