Free Speech: Its Recent Legal History and Our Response as Catholics

I write this article with the hope that it may help people understand the recent 20th-century foundation for “Free Speech” in the USA as shaped by the Supreme Court.  Also, I would like these factual insights to aid individual people who seek to defend her or his right to free speech.  As a minister of the Catholic Church, my ability to preach the Gospel in the USA is coming under social pressure and attack.  It is unknown whether this social/cultural change will lead to judicial ones.  Please note, defending the right of someone to speak freely does not mean others or I agree with what that person is saying.

How We Limit Free Speech

Why Am I Writing This Article:

Through my years volunteering for Tau Kappa Epsilon (a college fraternity) and the Catholic Church, I have experienced many different campuses throughout the eastern seashore.  Through these experiences, I have a general fear that the current generation of young adults will try to destroy or severally limit free speech by either implicit or explicit means.  An example of an explicit mean is calling any ‘uncomfortable’ or ‘challenging’ speech, which doesn’t conform to a groups social standards or worldview, ‘hate speech.’  The moniker of “hate speech,” I think, is being used, by leftist groups (note I’m not saying Liberal) as a way of labeling an individual’s words as “fighting words” and therefore attempting to strip that individual’s right to speak those words.  I will address “fighting words” more in a bit.  An example of an ‘implicit mean’ of restricting speech is the current construction of a culture in the USA where a person feels the need to hide her or his thoughts and opinions out of fear of social harassment and abasement (i.e. self-censorship).  Look no further than people hiding their opinion about voting for Trump from pollsters and many famous comedians refusing to perform on college campuses.  The current events in Berkeley, CA has also pushed me to think more about the issue of free speech and speech, in itself a form of violence (which I do not think it is).

Also, recent comments by political and former political leaders have me concerned about how those in elected power understand the role and place of free speech in the governmental, political, and social life of the USA.  Also, there is the business aspect of limiting speech.  An example is Google, who could remove people from their services because of social pressure to censor speech, limiting the way of life of any person accused of engaging in hate speech.  Keep in mind the proudness that hate speech seems to in compass these days in the USA.

As stated, I am a clergy member inside of a religious institution.  As clergy, I will need to share, teach, and defend my faith, so I may need to say things certain groups in the USA may not like or agree with (no matter her or his political perspective).  A person in my country has the right to disagree with me and not listen to me (just as I do in relation to them), but that person does not have a right to shut down my ability to share, teach, and defend my faith through my words, via the government.

Information About Myself Impacting My View

I am a trained historian from Northern Michigan University (a B.S. in History), who focused on economic systems of the Eastern Block of the 20^th century, so my thoughts have a more historical perspective within the article.  In terms of this article, I have chosen to show a progression in legal thought and the general social fall out from it.  Also, I have a personal interest in the Supreme Court. I like to read rulings, study its history, and listen to scholars and commenters about it.  I am NOT a supreme court scholar or historian, so I have tried to avoid appealing to their or my personal authority in what I have written.  I also believe no political party speaks for or holds all my values, which means as a voter, I work hard on researching the candidates and legislation proposals.  Also, I have offered a broad view of the history with the hope to have some level of brevity, so a person will not get lost in all the minutia details of Supreme Court History (which I see as fascinating).  If the topic interests you, please start doing your own research.

1942: Chaplinsky vs. New Hampshire – The Setting Forth of a Limit

Mr. Chaplinsky, a Jehovah witness, causes unrest in a community through public words (street preaching) on the problem with organized religion, his words were quite inflammatory.  Due to the unrest and him insulting a local cop, he was arrested and prosecuted under New Hampshire law, that limited a person from speaking in public, against another, any words that were insulting, offensive, derisive, or annoying.

The Supreme Court, in a unanimous decision, decide with the State of New Hampshire.  The court formed a two-tier theory of the first amendment, but more importantly, created the ‘fighting words’ doctrine.   Justice Frank Murphy offered this definition:

“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. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

It is my opinion that the current use of the “hate speech” label is an appeal to this “fighting words” doctrine.  By using the above-mentioned doctrine, a person may feel or believe he or she has a right to stop another person from speaking freely.

Since this ruling, the Court has greatly limited this 1942 ruling ever since, which we can see in the following CASES.

1949: Fr. Terminillo vs. the City of Chicago – The Limit of the Limit

Terminillo, a Catholic priest, who was suspended at the time, was giving a speech to 800 veterans, with over 1000 people protesting outside the venue.  Terminillio was focused on the dangers of Jewish communism.  The police could not keep the peace and Terminilio was later fined for causing public unrest.  The Supreme courted granted a ‘Certiorari’, which is a writ issued by the Supreme Court to a lower court to review the lower court’s judgment for legal error (i.e. a reversible error) and review where no appeal is available as a matter of right.  Normally, this is done to deal with splits in the lower courts.  What it means is that a least four the judges believe there is a concern with the lower court’s ruling.  Normally, there is no opinion given by the court in the writ, but with this case, there was also it was a 5-4 split, the simple majority of the Justices concerned about the rights of Terminillo.  Judge William Douglas, who held that free speech was not a limitless right wrote:

“The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, 260, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is, therefore, one of the chief distinctions that set us apart from totalitarian regimes.  Accordingly, a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”

Thus, only nine years after the “fighting words” doctrine and the Court are split on it and is beginning to set limits on how the doctrine is to be applied in a legal context.

1969: Brandenburg vs. Ohio -The Broadening of the Limit of the Limit

Our current understanding and application of the 1^st Amendment

Brandenburg, the KKK leader from rural Ohio, got a local TV news station to cover a KKK event.  During the event, there were vague threats against ‘n@ggers’.  Since Brandenburg was the speaker, he was arrested and charged with inciting violence against the African American community.

The court ruled unanimously in favor of Brandenburg.  The court released a ‘per curiam’ opinion, which means it spoke for all the Justices as is released under the institution of the Supreme Court and not the individual members of the court.  The court thought this ruling overturned Whitney Vs. California (which I won’t go into) and created the imminent lawless action test or “the Brandenburg Test.”  This test is shaped by three elements that must be meant to limit a person’s free speech: intent, imminence, and likelihood.  Within a person’s words there needs to be clear intent to do harm, the threat must be imminent, and the likelihood of violent action must be concrete.  For example, if a person is giving a speech to a crowd of people who are gun owners and within that speech, the speaker mentions a wish that a domestic terrorist should have blown up another building and this sort of action could happen again.  That person’s speech is protected because there is no clear sense of imminence or likelihood within the threat and therefore passes the Brandenburg test.

1971: Cohen vs. California – Free Speech Beyond the Spoken Word

Cohen as a 19 old man who wore a “f@ck the draft” jacket into a California government building.  He was arrested and charged with disturbing the peace via his conduct.

The Court ruled in a 5-4 decision in favor of Cohen.  Justice John Harlan II wrote the majority opinion. Justice Harlan’s opinion linked the idea of free speech with the conduct of Cohen, stating that this case was a free speech case and not about uncivil conduct.  He also held concerns about the State of California not informing citizens about how overall negative behavior won’t be tolerated will not be tolerated in certain areas.  The Justice thought that the Government was negatively impacted its citizens right to speech.  Also, the Court refused the argument that Cohen’s jacket fell under the “fighting words” doctrine because “[…] individuals, actually or likely to be present could not reasonably have regarded the words on appellant’s jacket as a direct personal insult.”  Also, the Court refused to give credence to the idea that a State or local government may suppress an individual’s right to free speech, in order to, protect the public at large.

In essence, this case limits governments ability to limit speech for the sake of the public and extended the right of speech to actions also, like the wearing of politically charged clothing.

1972: Gooding vs. Wilson – Abusive Words and Free Speech

Wilson, while being arrested, for protesting the Vietnam war, spoke some terrible and violent words against the police officer who were arresting him.  Under Georgia law, he was prosecuted for breaching public peace due to the language he used against the police officers.  The question before the Court was “Does the Georgia law limiting “opprobrious words or abusive language, tending to cause a breach of the peace” limits a person’s freedom of speech?”  The Court ruled 5-2 in favor of Wilson.  The Court limited the ability of the government to apply the “fighting words” doctrine even more and, in general, the ability of Government to limit speech, even in the process of being arrested.

Summary

In general, the government is very limited in its ability to restrict a person’s right to freedom of speech.  Seeing this strong juridical foundation within the USA legal system, I think, helps to protect people or group’s, right to the freedom of speech, from being stripped away via the label of ‘hate speech’ and the possibility of it being placed under the “fighting words” doctrine.  As a minister, I find some comfort here.

However, the 1^st (and later the 14^th amendment) were written to protect citizens from the Government, not citizens from citizens. This means that the conformity of speech as pushed by different groups in the USA, who use social and subversive methods to obtain their goals, is a real and true threat to free speech.  The recent events in Berkley CA (2017) is evidence of this reality.  Since the government cannot stop or shape a groups or person’s speech, private individuals or groups are taking it upon themselves.

Also, an additional concern I have is about the right to assemble as applied to one’s ability to exercise her or his free speech (this is a topic I am researching now).  A question I think that is being placed before us in the USA is this:  can a group legally assemble within the assembly of a different group to protest that group?   i.e. a group crashing another groups assembly in order to apply a heckler’s veto.  I see problems of people using the right to protest others as a way to shut unfavorable views and ideas down.  Will we see someday when Pro-Choice and/or Pro-Life protesters cross the proverbial protest line in public and engage in acts of intimidation to shut the other down from speaking?  I do not know.

As a Catholic Priest, I know the State, relatively speaking, cannot directly harass me or shut me up.  However, could google strip away my YouTube channel, due to the teachings of the Church? Maybe.  As a friar, I have been spit on and yelled at for my faith in urban settings as I walked through public areas.  As a mendicant, my order was engaged in itinerant preaching.  The government may not stop me, but will those I call my neighbor try to?  Possibly.  Knowledge is power.

My hope with this article is to inform and empower others to honor, embrace, and safeguard their right to free speech in the USA, not just from legal threats but from civil ones engaged with by our neighbors.  The USA is not a perfect place, it is not heaven on earth, but our ability to allow within the public sphere a place for our sins and our virtues to hold court so through civility we can discuss them and therefore grow as a people is of the utmost importance if we are to survive as a country.

As Therese of Lisieux wrote, “He takes into account our weakness, and knows perfectly the frailty of our nature.”  If God is willing to do this for us, we need to do likewise for our neighbor.  If our neighbor engages in hate-filled language, love and pray for them, and if a chance for charity arises, take advantage of it, so the light which charity provides may help the person see her or his own wickedness and make repentance possible.

As the Letter of St. James reads “Therefore, confess your sins to one another and pray for one another, that you may be healed. The fervent prayer of a righteous person is very powerful”(James 5:16).  Hate speech is first rooted in the heart.  If we wish to end hate, then we need to spread the love of Christ, who took all of our hate to the Cross and allowed his love to conquer it.  May we learn from our history in the USA and use our free speech as a way of spreading the love of Christ, in order to heal our divisions as a people.