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Happy Friday and welcome to the 15th in the Dog’s First Amendment Friday series. This series is following the syllabus for the class called The First Amendment and taught at Yale Law School by Professor Jack M. Balkin. As with the Friday Constitutional series this is a layman’s look at the Law, specifically the Supreme Court opinions which have shaped the boundaries of our 1st Amendment Protections. If you are interested in the previous installments you can find them at the links below:
“Originally posted at Squarestate.net“
First Amendment Friday 1 – Abrams v US
First Amendment Friday 2 – Gitlow v New York
First Amendment Friday 3 – Whitney v California
First Amendment Friday 4 – Brandenbrug V Ohio
First Amendment Friday 5 – Bridges V California
First Amendment Friday 6 – Planned Parenthood V ACLA
First Amendment Friday 7 – New York Times V Sullivan
First Amendment Friday 8 – Butts V Curtis
First Amendment Friday 9 – Gertz v Welch Inc.
First Amendment Friday 10 – Hustler V Falwell
First Amendment Friday 11 – Bartniki V Vopper
First Amendment Friday 12- Landmark V Virginia
First Amendment Friday 13 – Nebraska Press Assoc. V Stuart
First Amendment Friday 14 – New York Times V. US – The Pentagon Papers
This week we start into the section of the syllabus on Vagueness, Overbreadth and Prior Restraint. These are important concepts in First Amendment Law as vagueness and overbreadth can both lead to suppression of speech if they are allowed in the law. Prior Restraint is obviously a problem as we tend in the United States to wait until an action is taken before we remedy it in the law. This week’s case is about “fighting words”.
To understand Goodling V. Wilson we have to talk about a previous decision by the Supreme Court. In Chaplinsky v. New Hampshire it was found that while there are protections on political speech there are limits to what can be said. This limit is defined as “by their very utterance inflict injury or tend to incite an immediate breach of the peace.”. The basic premise here is any benefit this speech might have is outweighed by the societal interest in maintaining the peace.
Mr Gooding was charged and convicted under Georgia’s statute which makes it a misdemeanor to
“any person who shall, without provocation, use to or of another, and in his presence . . . opprobrious words or abusive language, tending to cause a breach of the peace . . . shall be guilty of a misdemeanor”
Mr. Gooding, who was protesting the Vietnam war in Georgia was placed under arrest for other acts which do not bear on this case. During his arrest he was agitated and made several statements to the officers. These statements included:
White son of a bitch, I’ll kill you
You son of a bitch, I’ll choke you to death
You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces
These statements were considered to be fighting words and thus unprotected by the First Amendment.
The Procedural History:
Mr. Gooding was convicted of two misdemeanor counts in Fulton County Court.
Mr. Gooding appealed to the George Supreme Court, on First and Fourteenth Amendment grounds the statute was too vague and overbroad. The GA Supreme Court rejected these arguments.
Mr. Gooding then appealed to the Federal District Court for Northern Georgia. This court found that since Mr. Gooding had not exhausted his available state level remedies the only issue it could and would decide on was whether the statute was unconstitutional on its face. It found the statute was indeed overbroad and vague and thus an unconstitutional abridgments of First Amendment Rights. The GA Supreme Courts decision was overturned.
The State of Georgia appealed to the Fifth Circuit Court of Appeals. This court agreed with the District Court.
The State of Georgia Appealed to the United States Supreme Court which granted this case a hearing.
The Legal Issue:
Did the language of the Georgia statute fail to construe the type of words which would be considered “fighting words” narrowly enough to pass the test established by the High Court in Chaplinsky?
Mr. Justice Brennan delivered the Courts Opinion. The decision was 5-4.
Justice Brennan lays out the bar this statute must clear in order to be Constitutional:
Section 26-6303 punishes only spoken words. It can therefore withstand appellee’s attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, (1971); Terminiello v. Chicago, 1949).
What the Justice is saying here if any speech, similar to Mr. Gooding’s could be protected by the Constitution, then the speech Mr. Gooding uttered must be protected too. The concern here is there not be a different set of standards for one person because of the unpopularity of that speech.
Justice Brennan then supports this contention with this paragraph:
The constitutional guarantees of freedom of speech forbid the States to punish the use of words or  language not within “narrowly limited classes of speech.” Chaplinsky v. New Hampshire, 571 (1942). Even as to such a class, however, because “the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn,” Speiser v. Randall, (1958), “in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom,” Cantwell v. Connecticut, (1940). In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. “Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.” NAACP v. Button,.
The State of Georgia had argued that they had indeed limited this statute to a very narrow set of words that would fit into the “fight words” test. Justice Brennan is not buying it.
The statute under attack simply states in statutory language what this Court has previously denominated ‘fighting words.'”. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, “Thus, in the decisions brought to this Court’s attention, no meaningful attempt has been made to limit or properly define these terms.”. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench. Their views of Georgia law necessarily are persuasive with us. We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed § 26-6303 to be limited in application, as in Chaplinsky, to words that “have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed.”
This is where Justice Brennan takes the State of Georgia’s case apart. He is saying the Federal Courts, which both have judges who practiced law in the State of Georgia found the Georgia Courts did not, in fact, rule in such a way as to show this statute was narrowly drawn. He also notes the Supreme Court made its own investigation of these rulings and found with the other Federal Courts. At this point it is game over for the State of Georgia on this issue.
The Majority found that though its application and its wording this statute was too broad and too vague to protect the rights of the people who might correctly want to speak out. This would tend to have a chilling effect on speech, if Mr. Gooding, whose words where indeed over the top were to be held guilty under the statute.
The Supreme Court ruled this law was unconstitutional on its face and could not be enforced.
Chief Justice Burger and Justice Blackmun dissented from this opinion.
Justice Blackmun’s major contention was the Majority was making the standard in Chaplinsky so high as to be insurmountable by the States in any statute. His argument against the majority decision is based on the fact there were few cases of this statute being used in its long history. The regime of testing in many of these cases was different than that established in Chaplinsky and thus the previous outcomes in the Georgia Courts should be used as a basis for ruling this statute facially unconstitutional.
Justice Blackmun concludes:
I cannot join the Court in placing weight upon the fact that Judge Smith of the United States District Court had been a Georgia practitioner and that Judge Morgan of the Court of Appeals had also practiced in that State. After all, each of these Georgia federal judges is bound by this Court’s self-imposed straitjacket of the overbreadth approach. Judge Smith’s personal attitude is clear, for he said:
“This Court does not see any policy reasons for upholding the right of a person to use the type of language expressed by this petitioner. It strains the concept of freedom of speech out of proportion when it is argued that such language is and should be protected.” 303 F.Supp. 952, 955 (ND Ga. 1969).
And the Court of Appeals joined in this comment when, on the point at issue here, it merely agreed “with the well reasoned opinion of the district court.” (CA5 1970).
For me, Chaplinsky v. New Hampshire, (1942), was good law when it was decided and deserves to remain as good law now. A unanimous Court, including among its members Chief Justice Stone and Justices Black, Reed, DOUGLAS, and Murphy, obviously thought  it was good law. But I feel that by decisions such as this one and, indeed, Cohen v. California, (1971), the Court, despite its protestations to the contrary, is merely paying lip service to Chaplinsky. As the appellee states in a footnote to his brief, p. 14, “Although there is no doubt that the state can punish ‘fighting words’ this appears to be about all that is left of the decision in Chaplinsky.” If this is what the overbreadth doctrine means, and if this is what it produces, it urgently needs re-examination. The Court has painted itself into a corner from which it, and the States, can extricate themselves only with difficulty.
This is a pretty tough one for the Dog to decide. There are a lot of issues which make it easy to see both sides of the Supereme Court’s decisions. On the one hand there is a real problem if the desire for public order encroaches on the expression of political idea’s. The functioning of a democracy depends on the free flow of ideas. At the same time there is a need for the public to be reasonably safe from being harassed with words that might incite immediate violence. Going to Harlem and shouting “You are all dirty Niggers! Nigger, Nigger, Nigger!” is clearly the kind of thing which is likely to cause an immediate breach of the piece with the attendant violation of the laws on assault and battery.
This gives a little more weight to the dissenting Justices. They are trying to preserve the concept of public peace while balancing the needs of the citizens protection under the First Amendment.
Where the Dog finds the balance tipped in favor of the majority is the actual facts of the case. Mr. Gooding was being moved from blocking access to a building, by the police, when he made his statements. While they are heinous, the police are part of the government and thus not protected from this level of harassment. If Mr. Gooding had said these things to another private citizen, it seems he would be violating the fighting words doctrine, but not to agents of the government.
So, there you have it Citizens, what do you think of the fighting words doctrine and was it applied correctly here?
The floor is yours.
Housekeeping: This week the Dog could not find this case at the IIL. But in keeping with giving credit to the site which provided the decisions, you can find this case at this link.