In the wake of school shootings, cracking down on potential threats has become priority. Not only are there threats of mass violence, but racist speech and sexist speech, that some would define as fighting words. A question to ask is when does speech become a fighting word. Having to decide what speech is protected by the first amendment, worthwhile, and what speech has no social value and is not protected, worthless, is controversial. Speech that is defined as worthless include: lewd, obscene, profane, libelous, and fighting words.
Focusing on fighting words and the ever developing world of technology, we will examine a present-day situation of words that wound and compare them to past cases. Universities and colleges are known to be more restrictive when it comes to speech to ensure the safety of the student body. Many times when the school takes action to discipline a student or faculty member for speech that is against their school conduct code, it is often deemed as overbroad and/or to vague. Early April a feminist group at the University of Mary Washington accused the school’s officials for failing not to act on threats made against its members.
The threats were made via Yik Yak, a social media app made specifically for college students to post messages anonymously. There has been an increasing number of arrests based on threats of mass violence on Yik Yak. The members of the feminist group held a gathering to address sexual assault on campus. The gathering resulted in approximately 700 messages via Yik Yak aimed at the feminist members.
While only a minority of the messages were direct threats, they were still hurtful and alarming. Some of the messages included threats of rape and even murder. Including many sexist and threating omments the question of whether they are protected by the first amendment or not comes into play. To look at the evolution of fighting words we will take a step back in time when Walter Chaplinsky, a Jehovah’s Witness, created a disorder by handing out literature calling organized religions a “racket”. He was arrested based on a New Hampshire law that prohibits speaking offensive or annoying words in public.
In Chaplinsky v. New Hampshire (1942) “fighting words” was defined as offensive language, even it does not provoke a fight and fight-provoking language that tends to incite violence or an immediate break of peace. Tedford & Herbeck, 2013, p. 188) Thus fowl language could be considered worthless under this particular ruling. Not only could one be prosecuted for fightprovoking but fowl language as well according to the Chaplinsky ruling. Only seven years after Chaplinsky the Supreme ruled on Terminiello’s v. Chicago (1949). Father Arthur Terminiello was originally convicted with violating a Chicago ordinance that stated any person get charged with disorderly conduct that make any improper noise, riot, disturbance, or breach of peace (Tedford & Herbeck, 2013, p. 190).
The Supreme Court reversed Terminiello’s conviction not unanimously. Justice William O. Douglas believed that the Chicago ordinance Terminiello was convicted under was overbroad. This case is significant in that it it protected speech that was provocative and challenging. A significant ruling in 1951 was Feiner v. New York. Irving Feiner gave an inflammatory speech to a diverse crowd. He called for African Americans to revolt against their oppression. After the crowd become restless, Feiner was asked three times to stop. He was arrested and convicted for violating New York’s disorderly conduct law.
Supreme Court upheld his conviction based on a clear and present danger of inciting a riot is not protected. Justice Black did not agree with the majority and believed the police should have protected the speaker, not arrest him. Examining former cases, the courts have stated that forbidding certain words is overbroad. Looking at a case like Cohen v. California, The Supreme Court overturned the original conviction of offensive conduct for wearing a jacket with “fuck the draft” written on it. Fighting words were then narrowed down to being directed to another to create danger.
They also acknowledged the difference between cognitive and emotion meanings of words. The justices argued that even though the speech was disturbing and offens sive, there was no clear and present danger. According to the Cohen case the speech has to be directed to another in such a way as to create danger. In the case of the Feminist United Group, the comments were shocking, but no evidence of actual danger or violence was present. Soon after, Gooding v. Wilson case was overturned based on the law going beyond fighting words, making it overbroad.
The Supreme Court added face-to-face confrontation to be likely to incite an immediate breach of peace (Tedford & Herbeck, 2013, p. 194). The comments made over the internet to the Feminists United members were not face-to-face. Since the messages were via Yik Yak and were anonymous the likeliness of the threat actually happening was not evident. Gooding’s and Cohen’s decisions rejected the Chaplinsky definition of fighting words. By taking the threats via Yik Yak directed towards members of the Feminist United and applying them to these former fighting word cases, the results would have different outcomes.
If this case would have been around the time of Chaplinsky v. New Hampshire the threats would have been considered fighting words. The threats could be proven to inflict injury on the listeners as the feminist stated that they felt increasing levels of fear and anxiety (ouvenal & Shapiro, 2015). This ruling would not happen if it happened after Cohen or Gooding. The comments were not made face-to-face and were not directed to another in a way that was likely to incite an immediate breach of peace. The University of Mary Washington did not take any action according to the Feminist United members.
The Feminists United members wanted the university to ban access to Yik Yak on campus which would intrude of the students right to freedom of speech. Plus, the University is a public university meaning it has to follow all federal laws. The University also does not have the power to have Yik Yak provide the names and contacts of the anonymous posts. Only law enforcement can require Yik Yak to provide them with information when there are actionable threats. The definition of fighting words has evolved over time. Once in time it would be easy to be convicted of abusive and threatening language.
The definition today is still being defined as many argue that fighting words suppresses free speech. While some people/places try to restrict speech, other organizations fight for their right to speak out. Public universities face challenges when it comes to protecting the safety of its student body. As for the the Feminists United threats, they will likely see no action from the University of Mary Washington or law enforcement. Though the comments were offensive to some, they are protected by the first amendment.
