CHAPTER 7 Speech and the Erosion of Relativism

Two vignettes may lead us back to discover anew the understanding that once governed our laws on the regulation of speech.

Vignette #1: I was in the courtroom of the Supreme Court on January 10, 2012, to hear Seth Waxman arguing, successfully, for the Fox network in FCC v.

This is how the Supreme Court, in its official report, chose to put on the record the words that the majority were about to defend as not at all unfitting to be sounded in public, on nationwide television. Apparently those words were not thought fit to be published in the official documents of the Court. And in his argument before the Court, denying that there was any tenable ground for regarding them as unfit, Mr. Waxman omitted speaking any of these words. What inference might we draw? Perhaps that Mr. Waxman, an urbane, skilled advocate, thought these words were not fitting for a public occasion of this kind of seriousness, with a grave judgment hanging in the balance? That there was something about these words that could coarsen and cheapen the climate of discussion, quite apart from whether anyone would be hurt by them? It is worth pointing out that the omission of these words did nothing to impair or weaken the force of Waxman’s argument or prevent its success.

Vignette #2: The scene: Amherst College, at a time of commencement in the mid-’90s: A dear former colleague was speaking to a vast audience of parents, grandparents, brothers and sisters, and aunts and uncles of the graduates gathered in the gymnasium. He chose on this occasion to sound again the cause of freedom of speech. And he focused on that signal case of Cohen v. California (1971), the case of a young man in the courthouse in Los Angeles wearing a jacket with the words “F— the Draft.” Paul Robert Cohen had been asked to remove the jacket, and his refusal brought forth a case that made it to the Supreme Court. The Court would come down on the side of Cohen and his jacket in a decision that upended the settled doctrines on the regulation of speech in public settings.⁴ My colleague sought to offer an earnest defense of the rights at stake in the case of Cohen and his jacket, and yet, tellingly, he took care never to mention the words on Cohen’s jacket. He described them simply as an “epithet.” But of course, that refined word, “epithet,” did not exactly convey the tone and character of the words on the jacket. My colleague, with his own sense of propriety, had backed into the commonsense understanding that lay behind the legal ordinance that Cohen had violated. It was that very understanding that the Court had upended in Cohen v. California. Evidently, my colleague didn’t think the words “F— the Draft” were appropriate to speak in a public setting.

That commonsense understanding had been articulated by Justice Frank Murphy in his opinion in Chaplinsky v. New Hampshire (1942). In that case Murphy wrote about the kinds of words and gestures—or we might say, “speech acts” (for example, the burning of a cross)—that could never be part of the rightful freedom of speech covered by the First Amendment: words or gestures that “are no essential part of any exposition of ideas.” Those utterances, said Murphy, were “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.” They could be barred for the simple but compelling needs of civility, to keep the climate of serious discussion from a coarseness that erodes any serious exchange of reasons.

And so, a short while later (in 1972), Mr. David Rosenfeld made a scene at a meeting of a school board in New Jersey with the repeated use of the adjective “motherf—ing.”⁵ But asking Rosenfeld to restrain himself, to forgo the use of that vulgar expression, would not have impaired in the least his freedom to make the most searing critique of the school board. And in another case, Chief Justice Burger thought that a couple joined in a sexual embrace on the steps of city hall would not be protected by the First Amendment even though they could have been acting out a political metaphor of what the local mayor was doing to his city. The couple could be barred from this inspired and gratuitous act of shocking the sensibilities of ordinary people in a public place, and yet they would still be quite unimpaired in their freedom to offer the most penetrating critiques of the mayor and his administration.⁶

But what were those words and gestures “of such slight social value as a step to truth” that they were unnecessary to the argument? And how did my colleague and Seth Waxman have such a precise surety as to what they were? The answer is of course grounded in the understanding of “ordinary language,” and that was the key to the Chaplinsky case as well.

To recall the circumstances of the Chaplinsky case is to confirm again that words may lose their sting over time. If we were faced today with the circumstances of that case, it does not seem likely that they would trigger the reactions of the law. And yet the case still rings with an enduring aptness precisely because it is rooted in certain functions of language that will simply not be effaced with time. In Chaplinsky, a Jehovah’s Witness was being especially sharp and provocative in his denunciation of other religions. He was restrained for using that assaulting language in public. And when he was taken in by Marshal Bowering in Rochester, New Hampshire, he spat out this reproach: “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” It is hardly likely, these days, that a man would be prosecuted because he was moved to emphatic, heated language when he thought he was being subjected to a wrongful arrest. Chaplinsky was prosecuted under a law that said, “No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.”⁷

The key words were: “offensive” and “derisive.” As a look back at the case shows, conventions in what ordinary people take as demeaning and insulting terms may change over time.

But this understanding and the wisdom long stored up in the law were overthrown in a stroke by Justice Harlan and his colleagues that day in 1971 when they published their judgment in Cohen v. California. That was the moment when Justice Harlan gave us the aphorism that would live on in opinions in lower courts, and in the better class of fortune cookie. “One man’s vulgarity,” he said, “is another’s lyric.”⁸ According to Harlan, the meaning of words was so subjective that no clear import could be attached to them. And that was especially the case with moral terms of faultfinding or criticism, which can be taken as insults too readily by people who may be overly sensitive.

With this stroke, Justice Harlan established his reputation for novelty by rediscovering the doctrines of “logical positivism” from his undergraduate years. He was trumpeting them anew about thirty years after they had been refuted and abandoned in the schools of philosophy. For his argument here was that the meaning of moral terms was essentially “emotive”: When a person tells us that he condemns racial segregation or genocide, he is telling us that he has quite powerful feelings about these practices. But the report on his feelings is quite different from his judgment that the act is wrong. In Harlan’s view, harkening back to “logical positivism,” moral judgments may reflect passions but they have no cognitive content: they do not hinge on standards accessible to others as well as oneself, standards that can be judged finally as true or false. As G. E. Moore pointed out long ago, if moral judgments rested on mere feelings, how could one ever have a moral argument? How could one tell a man that he doesn’t feel what he claims to feel?¹⁰

But that flaw touches the incoherence at the heart of Justice Harlan’s opinion in Cohen v. California. For there is a critical discord between Harlan’s premises and the grounds on which he sought to protect Cohen’s jacket as a species of “political speech.” What Cohen was doing with his jacket, Harlan thought, was taking a political stand. In the justice’s construal, Cohen was “asserting the evident position on the inutility or immorality of the draft.”¹¹ One is tempted to ask earnestly just which judgment Harlan thought Cohen more nearly meant by “F— the Draft”—that the draft was “immoral” or that it was “inutile”? Might it serve an analytic purpose to point out that the F-word strictly means neither one of these things? That was even more emphatically true if Harlan himself was right when he said that the import of these terms was irreducibly subjective and emotive, that they had no cognitive meaning. If that were true, how would Harlan have known that Cohen was making a “political” statement? For all we would know about it, “F— the Draft” could have meant “Make Love to the Wind.”

But of course we know what those words meant, especially in the context of the time, with protests against the war in Vietnam roiling the country. “F— the Draft” could not be construed as praise for the draft or support for the war. “F—” was not a term of praise or encouragement. “F— the Draft” signaled a condemnation of the war in Vietnam. Harlan may have claimed that the meaning of some words was subjective, or that meanings changed from time to time, but he recognized that the moral functions of commending or condemning will always be at work in our language. For we are, most distinctively, moral agents, given to making judgments at every turn about things that are right or wrong, good or bad, desirable or undesirable, just or unjust. As Aristotle pointed out in the first sections of the Politics, animals can emit sounds to indicate pleasure or pain, but human beings can give reasons about the things that are advantageous or disadvantageous, good or bad.¹² The human species cannot get through the week without expressing judgments on matters high and low, from the service at a restaurant to abortion and assisted suicide. Our language reflects our nature as moral beings. Words may vary in meaning over time, with some words losing their moral edge: “opportunist,” for example, used to be a pejorative, but announcers in football began to treat it as the descriptor for a player quick to pounce on the opportunities suddenly opened on the field. But within the class of words that convey moral reproach, there will always be a discernible cluster of words that are understood as insulting, denigrating, or assaulting. Such words will exist as long as there is, within this human tribe, the inclination to convey revulsion, disgust, or moral rejection. And of course, it is the force and beauty of “ordinary language” that one doesn’t need a degree in law to recognize these clusters of meaning. Truck drivers and construction workers may show antennae as sensitive as those of any professor of comparative literature in recognizing when they have been “dissed”—treated in a dismissive way. Indeed, the whole scheme of regulating “fighting words” and other verbal assaults may work best when the words are submitted to a jury of ordinary people. And it works nicely, in the framework of classical liberalism, to give instructions of this kind to the jury: We work under the premise that people are presumptively free, that the burden falls to the government to show that something wrongful was done. We would ask you, then, to hold back from finding guilt in the speaker unless you judge that his words or gestures would have been seen plainly as gestures of insult or assault. If there is any doubt—if a word seems ambiguous, or if it seems to stand on the borderline between derision and severe criticism—then do not convict. And then, to illustrate the difference, we might give the panel this list of terms:

· Nigger

· Kike bastard

· Wop

· Urologist

· Registrar

· Meter maid

· Saint

Or gestures:

· Burning crosses outside the home of a black family

· Nazis parading with swastikas in a community containing Jews who survived the Holocaust in Europe

· Welcoming the Red Sox back home after they won the World Series

· Writing a love letter

In my own city of Washington, D.C., there might be some question at the margins about “meter maid,” for meter maids sometimes give tickets even before the meters run out. But we will find most people converging on the terms and the gestures that would be recognized at once by people at every level of education or refinement as terms or gestures of assault and wounding. The way we have set up the problem here reflects the sober and modest character of a liberal order. The presumption is in favor of freedom, with the burden of proof on those who would accuse speakers of wrongdoing. But there is an absorption of the deep premises of prudence as found in, say, Aquinas. The law cannot hope to extirpate all evils; at best it can hope to limit evils to a level that can be more readily borne. The law cannot convert human beings into angels, and a government that would strain to that impracticable end would require powers well beyond anything that is safe to put in the hands of those bipeds walking among us. As Aquinas put it in the Summa Theologica, the aim of the law is to lead people “to virtue, not suddenly, but gradually.” One needs to take care, he said, not to “lay upon the multitude of imperfect men the burdens of those who are already virtuous”—namely, “that they should abstain,” with stringency, from all manner of vice. “Otherwise,” he wrote, “these imperfect ones, being unable to bear such precepts, would break out into yet greater evils. As it is written (Proverbs xxx. 33): He that violently bloweth his nose, bringeth out blood; again (Matt. ix. 17): if new wine… is put into old bottles… the bottles break, and the wine runneth out.”¹³

That sense of prudence has ever been present in the laws, as the best mayors and district attorneys sought to deal with intractable problems such as prostitution, gambling, or abortion. Frank O’Connor, the legendary DA of New York City, would every so often administer the sting of arrest to a doctor on Park Avenue arranging abortions. He knew he could not reach all abortionists operating in the shadows, outside the law, but he could convey, in a notable stroke, that the practice would not be countenanced in a respectable city, with a decent people. One keeps encountering conservatives who recoil from licentious, vicious speech in public places and yet would rather stay the hand of the law than confirm the power to make these decisions in the hands of the authorities. There has been a reluctance to engage the law even when the standards of judgment are so clear that they can be understood by truck drivers as well as professors. For some reason one of the oldest truisms of political life seems to evade them: that there is no power of government that may not be abused. If the very prospect of making mistakes and doing wrongful things is a decisive ground for rejecting the law, then that injunction would apply to the laws on welfare and civil rights, along with the laws that offer support to widows and orphans. For those laws, too, may be diverted to corrupt ends, along with every other part of the law. The law cannot hope to reach every assaulting act of speech or to right the wrongs done to all of the victims of burning crosses; but it may be enough for the law to concentrate on the clearest cases, the cases that will teach the clearest lessons.

In Cohen v. California, there was a curious passage in which Justice Harlan remarked that “no individual actually or likely to be present could reasonably have regarded the words on appellant’s jacket as a direct personal insult.” Harlan wanted to confine the definition of “fighting words” to words said in a face-to-face encounter. I had read him here to be thinking ahead to what he might have said if the jacket had said, “F— the Jews” or “F— the N-word.” Would his judgment really hinge on a prediction about whether a Jew or a black man was likely to enter the building? Was it unthinkable that even people who are not Jews or blacks might object to that kind of language as unfitting for a public place? The same concern was raised by the speech of Seth Waxman as he argued the case on bad language before the Supreme Court and avoided the very language he was defending. And it was the same concern shown by those who pleaded for the New Jersey parent to stop wrecking the climate of discussion by weaponizing the word “motherf—ing.” Again, it is clear that we are not dealing here with material injuries. What was at stake was the danger of destroying the prospect for a serious, substantive discussion by degrading the climate of civility.

Few decisions of the Court have had a more profound effect than Cohen v. California in coarsening the climate of public discourse in this country and degrading the way people encounter one another in public settings. Before Cohen those who ventured into public places could reasonably expect that people would restrain themselves out of a respect for the sensibilities of others. But Cohen reversed those expectations: the reigning premise now was that if people were offended by coarse, assaulting speech, they should avert their eyes and ears, develop tougher skin, or simply avoid public places altogether.

And yet the Court has enforced one notable carve-out from the near-relativist tolerance for virtually all species of political speech installed by Cohen v. California: those speakers and demonstrators known as “pro-life.” When it comes to pro-life groups standing outside abortion clinics with signs, or simply in prayer, the people entering those clinics have not been asked to avert their eyes or forgo walking past the demonstrators. For they would find the sting of reproach in the very presence of those demonstrators, and to the courts that is a sufficient ground for silencing or muting the protestors. Pro-lifers have been pushed further from sight and earshot. They have been banned at times from approaching women entering the clinic in the hope of engaging them in conversation. In one case they were barred from coming closer than eight feet to someone entering a clinic.¹⁴ And in another case, the government sought to bar a priest and a bishop from praying silently in front of an abortion clinic in Dobbs Ferry, New York.¹⁵ For, after all, people entering the clinic may decode this act of praying as a gesture of moral condemnation. Even in this age of freewheeling relativism, with claims to an expansive protection of speech, the law does seem to find a way to brand some speech acts as insulting and illegitimate.

And this has been taking place even as the Court has been ever more forcefully affirming that there are no grounds for restricting “offensive” speech. Meanwhile, there is no place now where even a muffled reference to the N-word does not set off an explosion of outrage and condemnation, even in Mark Twain’s Adventures of Huckleberry Finn, where it is used for the purpose of ridiculing racists. The outrage flares even when people make references to that word for the sake of condemning it! There is no doctrine of free speech these days so sweeping in its tolerance that it will protect even the non-assaulting use of that word. All of which may merely confirm a truth that cannot be effaced: human beings, as moral agents, will always bring forth words that commend and condemn, praise and assault; and no matter how liberal the doctrines of the law may be on the freedom of speech, the people most ardent for that freedom will still identify some words and gestures as unfit for respectable company—and for the protections of the law. That state of affairs will persist, even when justices of the Supreme Court, seeking the widest protection for speech, declare it “a bedrock First Amendment principle” that “speech may not be banned on the ground that it expresses ideas that offend.”¹⁶

We have absorbed now a grave confusion in our doctrines governing the regulation of “speech”—with some enduring, unlovely effects on the character and tone of our civic and public life. The mistakes made in the regulation of speech cannot, of course, bear all the guilt for what has befallen us. The larger dynamic at work here has been the erosion of confidence in the test of truth itself, and the emptiness of so many of the slogans that have gained currency all about us. To take just one notable and familiar example, is it not a wonder that, when the subject of abortion arises, we find so many people with college educations who profess not to know when human life begins? Can it really be that they are incapable of simply reading what the textbooks on embryology or obstetric gynecology have to say on the subject? Or have they not had an elementary course in biology, even in high school? Have we really reached the point in this country where the passions of our political life have extinguished the common sense that ordinary people typically bring to their ordinary lives, when they never doubt they can tell the difference between men and women? Or when the news of a pregnancy is greeted with the awareness of a baby soon to arrive?

But the drift away from truth cannot be detached from the relativism that has become ascendant in our jurisprudence governing speech. That relativism has been in the air, so to speak, for about a hundred years now, but especially since the end of the Second World War. It was the problem that brought forth from Leo Strauss the lectures that formed his classic book Natural Right and History—and that telling line about the relativism that came to America along with the “historical school” in Germany: “It would not be the first time,” wrote Strauss, “that a nation, defeated on the battlefield and, as it were, annihilated as a political being, has deprived its conquerors of the most sublime fruit of victory by imposing on them the yoke of its own thought.”¹⁷

Since Justice Murphy’s opinion in the Chaplinsky case, there has been an erosion in the moral understanding that needs to govern the regulation of speech. The moral case for freedom of speech has faded, along with the moral sense of the rightful limits to that freedom. What has befallen us since then could be characterized as an “iatrogenic” problem—which is to say, a malady produced by the doctors themselves. We can say that the problem in the regulation of speech has been precisely engineered and sustained by the doctors of the law, bedecked with robes and, at times, a smattering of third-rate philosophy. But the progress of a malady made by the doctors themselves can be seen more readily if we turn for a moment to a colorful case that has been consigned to the folklore of our law.

Terminiello v. Chicago was a 1949 case that arose out of a public gathering headlined by the combative Father Arthur Terminiello.¹⁸ Father Terminiello, then based in Birmingham, Alabama, had etched a sharp figure for himself in the media as an impassioned anti-Communist with an anti-Semitic edge. Terminiello was hardly a model of nuance or of moderation in utterance, and that want of modulation had led his bishop to suspend him. At the time of the case, Terminiello had flown in to address a large gathering in Chicago organized by Gerald L. K. Smith, a notorious anti-Semite. Terminiello, touted by such public figures on the right, offered a target that Communists and Socialists could not resist, and they organized their own crowd to demonstrate against the rally. The result was that, by the time Terminiello arrived at the auditorium, the surrounding streets were the playground of clashing mobs. Terminiello made his way into the hall in the face of a howling, pushing crowd. He managed to begin his speech, with taunts and yells coming from the crowd, until he exploded in outrage and invective. At that moment the police, who had shown remarkable patience, felt pressed to intervene and remove Terminiello from the podium.

Terminiello was charged and convicted on the basis of a statute in Illinois that read as follows:

All persons who shall make, aid, countenance, or assist in making any improper noise, riot, disturbance, breach of the peace, or diversion tending to a breach of the peace, within the limits of the city… shall be deemed guilty of disorderly conduct, and upon conviction thereof, shall be severally fined not less than one dollar nor more than two hundred dollars for each offense. [Ellipsis in original.]¹⁹

But in the prosecution of the case, the emphasis was put on the content of Terminiello’s speech, with the standards that came into play with the Chaplinsky case in gauging offensive, derisive “fighting words.” Justice William Douglas wrote for the Court in striking down Terminiello’s conviction. He didn’t contest the fact that overheated and provocative language had brought the hammer of the law down on Terminiello. For Douglas the truly decisive part of the case involved an instruction that the judge had given to the jury at trial. The judge had suggested that there would be a violation, or a “breach of the peace,” if the “misbehavior” of the accused “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” But as Douglas noted, political speech is usually heated speech, speech about the most vexing issues of right and wrong that divide people. We cannot pronounce speech to be wrongful merely because it ignites anger in some people.²⁰

The case had been prosecuted with the focus provided by the Chaplinsky case—the focus on words that are understood, in ordinary language, by ordinary people, as insulting and provocative. Douglas would have none of that. “The pinch of the statute,” he said, “is in its application.” Terminiello, said Douglas, may have been convicted on the ground that his speech invited “dispute” and brought about a “condition of unrest,” but those features could not justify the punishment or restriction of speech.²¹

That construction was offered so earnestly, with a joyous blindness to the details of the case. Forty-three years later, those lines by Douglas would be invoked by several of Justice Scalia’s colleagues as they derided his opinion striking down an ordinance that barred the burning of crosses outside the homes of black families. Justices White and Stevens would shower ridicule on Scalia’s reasoning, even as they felt compelled to concur in his judgment—but to concur on no ground other than that same facile formula offered by Justice Douglas in the Terminiello case.²²

Justice Robert Jackson had acted as the lead attorney for the Americans prosecuting Nazi leaders at Nuremberg. For Jackson the judgment in Terminiello was an example of jurisprudence soaring in the heights of lofty sentiment, quite untethered from the unlovely facts that marked this case. The scenes on the streets of Chicago reminded Jackson of the brawls between Nazis and Communists that had gripped the Weimar Republic and propelled the Nazis to power. He was moved to invoke an old proverb that says we should “take heed lest we ‘walk into a well from looking at the stars.’ ” Douglas, said Jackson, had made barely a passing reference to the facts on the ground, writing as if Terminiello “had spoken to persons as dispassionate as empty benches, or like a modern Demosthenes practicing his Philippics on a lonely seashore.” “The local court that tried Terminiello,” he added, “was not indulging in theory. It was dealing with a riot and with a speech that provoked a hostile mob and incited a friendly one, and threatened violence between the two.”

Jackson sought to “bring these deliberations down to earth by a long recital of facts.” A bare review of the record told the story in a detail quite vivid enough. As Jackson recalled the scene,

the crowd reached an estimated number of 1,500. Picket lines obstructed and interfered with access to the building. The crowd constituted “a surging, howling mob hurling epithets” at those who would enter and “tried to tear their clothes off.” One young woman’s coat was torn off and she had to be assisted into the meeting by policemen. Those inside the hall could hear the loud noises and hear those on the outside yell, “Fascists,” “Hitlers” and curse words like “damn Fascists.” Bricks were thrown through the windowpanes before and during the speaking. About 28 windows were broken. The street was black with people on both sides for at least a block either way; bottles, stink bombs and brickbats were thrown. Police were unable to control the mob, which kept breaking the windows at the meeting hall, drowning out the speaker’s voice at times and breaking in through the back door of the auditorium. About 17 of the group outside were arrested by the police. [Emphasis added.]²³

The police, in other words, had sought to deal with the violence outside the hall by arresting those who had ginned it up. The sense of things inside the hall was conveyed precisely enough in Terminiello’s own account at the trial:

I saw rocks being thrown through windows and that continued throughout at least the first half of the meeting, probably longer, and again attempts were made to force the front door, rather the front door was forced partly. The howling continued on the outside, cursing could be heard audibly in the hall at times. Police were rushing in and out of the front door protecting the front door, and there was a general commotion, all kinds of noises and violence—all from the outside.

Between the time the first speaker spoke and I spoke, stones and bricks were thrown in all the time. I started to speak about 35 or 40 minutes after the meeting started, a little later than nine o’clock.²⁴

Even a Buddhist priest might have had trouble restraining himself from answering back with his own sense of outrage. As it happened, Terminiello gave what could be taken as a familiar, fiery political talk. And for a man accused of anti-Semitism, he seemed careful to make clear that his criticism of certain prominent Jewish Communists was not to be taken as a blanket condemnation of the Jewish people. (These assurances may have been discounted by the fact that he was appearing under the auspices of Gerald L. K. Smith, a man not exactly given to making those fine distinctions.) But as the crowd grew more ferocious and intransigent, and Terminiello rose to the challenge, it was foreseeable that his rhetoric would turn a corner:

I know I was told one time that my winter quarters were ready for me in Siberia. I was told that. Now, I am talking about the fifty-seven varieties that we have in America, and we have fifty-seven varieties of pinks and reds and pastel shades in this country; and all of it can be traced back to the twelve years we spent under the New Deal, because that was the build-up for what is going on in the world today….

First of all, we had Queen Eleanor [Roosevelt]. Mr. Smith said, “Queen Eleanor is now one of the world’s communists. She is one who said this—imagine, coming from the spouse of the former President of the United States for twelve long years—this is what she said: ‘The war is but a step in the revolution. The war is but one step in the revolution, and we know who started the war.’ ”…

Now, let me say, I am going to talk about—I almost said, about the Jews. Of course, I would not want to say that. However, I am going to talk about some Jews. I hope that—I am a Christian minister. We must take a Christian attitude. I don’t want you to go from this hall with hatred in your heart for any person, for no person…. [This ellipsis in original.]

Now, this danger which we face—let us call them Zionist Jews if you will, let’s call them atheistic, communistic Jewish or Zionist Jews, then let us not fear to condemn them. You remember the Apostles when they went into the upper room after the death of the Master, they went in there, after locking the doors; they closed the windows. (At this time there was a very loud noise as if something was being thrown into the building.)

Don’t be disturbed. That happened, by the way, while Mr. Gerald Smith was saying “Our Father who art in heaven;” (just then a rock went through the window). Do you wonder they were persecuted in other countries in the world?… [Emphasis added, ellipsis in original.]²⁵

The audience was evidently primed to fill in the ellipses with a fuller sense of the villains, for these remarks, as Jackson said, moved the audience to “expressions of immediate anger, unrest, and alarm”: “One called the speaker a ‘God damned liar’ and was taken out by the police. Another said that ‘Jews, niggers and Catholics would have to be gotten rid of.’ One response was, ‘Yes, the Jews are all killers, murderers. If we don’t kill them first, they will kill us.’ The anti-Jewish stories elicited exclamations of ‘Oh!’ and ‘Isn’t that terrible!’ and shouts of ‘Yes, send the Jews back to Russia,’ ‘Kill the Jews,’ ‘Dirty kikes,’ and much more of ugly tenor” [emphasis added].

“This,” said Jackson, “is the specific and concrete kind of anger, unrest and alarm, coupled with that of the mob outside, that the trial court charged the jury might find to be a breach of peace induced by Terminiello.”²⁶ For Jackson, that mob formed a critical part of the total context in which these verbal assaults had taken place. For him, coming from Nuremberg, the action in the streets recalled Hitler’s explicit teachings on the strategic use of the streets.

“We should not work in secret conventicles,” Hitler had written, “but in mighty mass demonstrations, and it is not by dagger and poison or pistol that the road can be cleared for the movement but by the conquest of the streets. We must teach the Marxist that the future master of the streets is National Socialism, just as it will some day be the master of the state” [emphasis added by Justice Jackson].²⁷

The action in the streets, the howling mob trying to break into the hall, the unruly people picking fights inside—all were material for an explosion waiting to be ignited. And the trigger could be found, for Jackson, in the “fighting words” of the Chaplinsky case. In a train of invective, Terminiello responded to the venom of his antagonists in the hall by calling them “slimy scum,” “snakes,” and “bedbugs.”²⁸ At that moment, the police finally intervened to keep a battle from breaking out in the auditorium.

For Jackson the case was a moment of soul-searching that ran deep, for it brought him to wonder aloud about the wisdom of the Court, in 1925, in the Gitlow case, when it had taken the step of applying the First Amendment to the states through the Due Process Clause of the Fourteenth Amendment.²⁹ That was the notable first step in the gradual “incorporation” of the Bill of Rights to apply to the States. Jackson looked back to the precedents running up to the Gitlow case, and his reaching back brought him to Justice Holmes’s opinion in the memorable case of Schenck v. United States (1919).³⁰ And what Jackson offered now, as the doctrine that should govern the Terminiello case, was Holmes’s famous “clear and present danger” test from Schenck. “The question in every case,” Holmes had said, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress [or the State or City] has a right to prevent” [emphasis added by Justice Jackson]. For Holmes—as for Jackson—the most incontestable “substantive evil” that speech could bring about was a riot, an outbreak of violence.³¹ And for Holmes that concern preempted the moral question of whether the speech itself was provocative or thoroughly innocent. Nor would it matter whether the reaction of the crowd might have been warranted by a provocation or an unjustified verbal assault.

For Holmes, ever seeking to purge moral judgments from the law, those distinctions just did not matter. The brute fact was the riot, and it needed to be put down for the public peace and safety. But that Holmesian detachment from the moral character of the speech is the key to the failure of Jackson’s otherwise rich and insightful commentary in Terminiello. For if the silencing of Terminiello hinged on the prospect of his bringing about the “substantive evil” of rioting, then Terminiello could have been barred from speaking before he had even reached the podium. For as the record showed, the riot was in full force by the time Terminiello had arrived. And when the opening of doors offered the occasion for ice picks to whirl through, there could be no question that a riot was already in progress.

If Jackson was prepared to use the “clear and present danger” test as the most apt or serviceable test for the Constitution, then he would have done even more than bar the speaker from the chance to speak. He would have put in place a doctrine that yields deeply illiberal effects, “the heckler’s veto”: the success of adversaries in bringing out a mob in the street—or on a campus—and serving up a hostile protest can be enough to bar any speaker from speaking. The heckler’s veto has recently shown its primitive force once again in the thoroughgoing barring of conservative speakers from many of the colleges and universities in this country.

Jackson had no need to go back as far as Schenck for a constitutional test so dubious. He already had in hand the much better rule of Chaplinsky, with an opinion he had joined, and that case offered a guidance that could be readily understood by ordinary people. When the matter is seen through the lens of Chaplinsky, it was the police on the scene in Chicago who turned out to be the best jurists in the Terminiello case. They worked with a careful and deft hand precisely because they were guided by the commonsense understanding in Chaplinsky. They knew that they could recognize at once the kinds of words and gestures that were meant to insult and denigrate and taunt an audience to the edge of a violent outburst. What they saw, from the first moments, was a crowd itching for trouble long before any speaker reached the podium to speak. And so their first reflex was to restrain the violent. They would not use the violence of some people in the crowd as a predicate for dispersing the audience or silencing the speaker. As Terminiello recalled, when he arrived at the building, the protestors were there “body to body and covered the sidewalk completely, some on the steps so that we had to form a flying wedge to get through.”³² It took the police to escort Terminiello and his hosts to the building. As Jackson noted, seventeen people outside the hall were arrested. Once inside, the police sought to deal with the people who were shouting and trying to prevent the speaker from speaking. One man in the audience sprung up and called the speaker a “God damned liar”; he was removed by the police. The operating mode of the police, we might say, was to protect the freedom of the speaker while dealing with the violent opposition that could disrupt the speech and produce a minor riot. In this way the police sought to preserve a certain public order—until Terminiello began responding to his assailants with the kind of language (“slimy scums,” “bedbugs”) that threatened to drive things over the edge. That was the moment when the police finally intervened to take Terminiello off the stage. It was his use of those words, in that context, further inflaming the crowd, that was taken as the ground of his responsibility here—and the justification for the $100 fine that he was assessed.

But as judges and scholars look back at the Terminiello case, the judicious performance of the police, guided by the standards in Chaplinsky, goes wholly unnoticed. Only fragments of Jackson’s fine opinion are recalled, detached from the dissenting judgment that they helped to explain. The one thing that remains, echoing afresh, with the power to keep our jurisprudence on speech in permanent disarray, are those lines from Justice Douglas on the instruction given to the jury: whatever the circumstances of the case, judges must not sustain any restriction of speech on the ground that the speech “stirs the public to anger, invites dispute, brings about a condition of unrest.” Twenty-two years later the Court would turn another critical corner with Cohen v. California, and twenty years after that it would confront the case of burning crosses outside the homes of black families. With these turns, those simple lines from Justice Douglas in Terminiello would have a deep, crippling effect on our law. The pieces finally came together in the most revealing way in that case on the burning of crosses, R.A.V. v. St. Paul in 1992.

Justice Scalia set forth the plain facts of the case: “In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside the fenced yard of a black family that lived across the street from the house where petitioner was staying.”³³

As Scalia noted, this conduct could have been prosecuted under other ordinances, as, for example, the laws barring trespassing. But that was not exactly the wrong that the authorities were seeking to condemn in this measure for the burning of crosses. Their sense of the problem was reflected in the language of the ordinance: “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”³⁴

Anyone who had absorbed the common sense of Chaplinsky, with its dependence on the understanding of ordinary language, would have had no trouble decoding what was taking place here. Anyone who had lived in this country, and known something of our experience as a country, could instantly tell the difference between, say, a burning shoe box and a burning cross. Materially speaking, there may be little difference. But people who know the meaning of ordinary words and expressive gestures—the raised middle finger, the well-placed jeer or sneer—understand the difference at once. They have no trouble telling the difference between a crowd welcoming the Red Sox home after winning the World Series and a crowd outside the home of a black family burning a cross. And that is why the Supreme Court of Minnesota, in construing the statute, could put aside many of the words about arousing “anger, alarm or resentment” and find the core of the statute in those “fighting words”—those words or gestures of assault and denigration.

But that is where Justice Scalia offered a refinement that would imperil the ordinance—and stir disagreement with his colleagues. Scalia was quite prepared to sustain restrictions on the forms of speech that were arguably obscene or lewd or denigrating. For their content, he wrote, “embodies a particularly intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to convey” [emphasis in the original].³⁵ Scalia did not think that bans on that kind of offensive speech could be averted by attaching a political message to it. A “shockingly hardcore pornographic movie” could not be saved from proscription if the filmmakers simply included a model “sporting a political tattoo.”³⁶ In that vein, we may recall Chief Justice Burger’s hypothetical couple locked “in sexual embrace” on the steps of city hall. The couple could have been acting out a metaphor of sorts, characterizing what the administration of the day had done to the city. But the message could be conveyed in other ways without engaging in this gratuitous bit of theater to assault the sensibilities of ordinary people in the middle of the day. Scalia’s concern drew on Cohen v. California in its opposition to restrictions based on the “content” of the speech. For Scalia, the decisive point was discrimination based on “viewpoint.” The law could bar all speech threatening the president, but not the speech threatening only presidents of one political party or only presidents holding to liberal or conservative policies. The law may bar libel, but not solely libels directed at officials in the government. Scalia did not deny for a moment that “burning a cross in someone’s front yard is reprehensible.”³⁷ But the flaw he found here was that the law restricted speech based on certain “disfavored subjects.” It was directed at those groups that the people in political office cared about beyond others. As Scalia argued, the ordinance in St. Paul “applies only to ‘fighting words’ that insult, or provoke violence, ‘on the basis of race, color, creed, religion or gender.’ ” But since he agreed that these gestures of assault on black people were reprehensible, who was being left out? Who was not being shown a comparable concern? Not covered, said Scalia in a telling passage, were those attacked on the basis of “political affiliation, union membership, or homosexuality.”³⁸

On the campuses in the country—and in our public discourse—we hear people labeled as “homophobes.” They are characterized as bearers of a disease, rather than as people who may have reasons, and at times religious convictions, that lead them to serious reservations about the homosexual life. People who have done no more than defend marriage as a union between one man and one woman have been treated as lepers. They may be even barred from employment in leading corporations, as in the notable case of Brendan Eich. Eich was forced out of Mozilla, the company he had shaped, because he had contributed to the referendum in California that sought to preserve marriage as the union of one man and one woman. People with Eich’s beliefs don’t seem to command much sympathy or concern from those who pass these statutes on racial discrimination and the burning of crosses. But might these people not be protected, as well, from denigrating attacks that affect even their prospects for making a living?

Still, there are ample grounds on which to find the act of hostility aimed at black people in the cross-burning to be a serious assault. The fact that legislators are not moved to cover other victims attacked in similar ways is not an argument for failing to vindicate the wrongs that the law does reach.

For Justices White and Stevens, the Court seemed to be losing its moral and jural bearings as it showed a willingness to pass over this odious assault on black people. As Stevens remarked, all of the cases dealing with classes of speech based on the content of speech had involved “precisely the sort of regulation the Court invalidates today.”³⁹ And Justice White was even more severe: “The decision,” he wrote, “is mischievous at best and will surely confuse the lower courts. I join the judgment, but not the folly of the opinion” [emphasis added].⁴⁰ There was the censure—and, at the same time, the evasion. Both judges were being snippy and gratuitous in their commentary on Scalia’s opinion—and yet both of them were concurring in the judgment. Justice Stevens wrote that he would certainly have voted to sustain this law had it not been “overbroad.” And Justice White noted, as the decisive ground of his complaint, that the Supreme Court of Minnesota had been willing to uphold an ordinance barring expression that “by its very utterance” causes “anger, alarm or resentment.”⁴¹

Virtually every member of the Court expressed a willingness to sustain a law involving this classic assault on black people, and most of them refused to share Scalia’s aversion to casting judgments on the “content” of the speech. What held them back from following their convictions in this particular case? It was nothing other than those lines lingering from Justice Douglas’s opinion in the Terminiello case: that we may not restrict speech simply on the grounds that it stirs “anger,” incites “unrest,” or arouses “alarm”—for do we not know that all political speech can do that?

The court in Minnesota had read the statute through the lens of the Chaplinsky case: there was an expressive act, understood readily in our language and experience as an act of assault. And an assault directed solely on the basis of racial hostility was clearly unjustified. Why did the language from the Terminiello case come into play here at all? The answer may be supplied by reminding ourselves of the surgery that had been done on the Chaplinsky case with Justice Harlan’s quick scalpel in Cohen v. California.

Justice Murphy’s opinion in Chaplinsky had summarized the nature of an offense that the law may rightly forbid: “the insulting or ‘fighting’ words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” There were two categories of “fighting words” there: words “which by their very utterance inflict injury,” as distinguished from words that “tend to incite an immediate breach of the peace.”⁴² The first test reminded us that assaults do not strictly require the laying on of hands or bodily touching. They can be found in a threatening or lewd phone call in the middle of the night, or in a public insult. People can be hurt, with lasting effects, even if they don’t have the means of striking back at their assailants. After all, the black family in the house may not have the opportunity to assault the crowd burning a cross outside.

The surgery done by Justice Harlan in the Cohen case removed that first category established in Chaplinsky. According to Harlan, the meaning of words was too elusive, and perhaps too emotive, to have any fixed meaning. The restraint on speech could be cabined, then, by confining “fighting words” to those words spoken or spit out in a face-to-face encounter that was more likely to produce actual “fighting.” Gone was the recognition of those words “which by their very utterance, inflict injury.”

And now, in the post-Cohen world, the city council in St. Paul was no longer free to bar the burning of crosses as an act that “by its very [execution] inflict[s] injury.” That commonsense understanding was no longer available to legislatures in the country after the Cohen case. All that was left was the possibility of barring words that “tend to incite an immediate breach of the peace”—words or gestures that provoke people to violence. And how might a legislature explain a bit more precisely what those words might be? Well, the legislature might try to explain that it is forbidding the kind of language that “stirs the public, invites dispute, brings about a condition of unrest.” But those are the key words from Terminiello. And they will produce now, each time, the same result. No matter how firmly grounded the law may be in identifying words and gestures truly assaulting, the statute will be readily overturned whenever a legislature seeks to explain that it has in mind the gestures and words that… truly make people angry, outraged, and ready to strike back.

It is a surefire formula for striking down virtually any law seeking to apply even the most minimal restraints that a civilized community would seek to establish in its public life. The whole thing resembles the old Monty Python bit of a training officer inviting his men to attack him with a banana. One man makes a try… and he is shot. The men keep trying, in a series of sallies, this time a man wielding a pomegranate, followed in succession by others with other pieces of fruit. One after another, the mock assailants are shot, confirming anew the same lesson.

The justices have brought about a situation in which laws regulating speech cannot recognize those acts of speech that “by [their] very utterance inflict injury.” To pass constitutional muster, a law would have to be defended by showing what in the speech it bars is likely to inflame and incite fighting. But at the same time, the very description of those qualities—provoking people to anger and unrest—becomes enough, under the formula of Terminiello, to strike down the law. We might as well try next time with bananas.

As we have seen, what we have here is the jural equivalent of an iatrogenic disease. The current disarray and incoherence in our laws governing speech is a disarray brought about and sustained by judges. The marvel is that the incoherence has not been obvious enough, to minds tempered in the law, to alert the judges that somewhere along the way something has gone notably wrong. The only saving grace is that the Chaplinsky case is still there to be read, a model of common sense to be discovered anew and to offer a kind of lighthouse for jural minds still adrift.

With the advent of John Roberts as chief justice in 2005, Justice Scalia’s position became even more entrenched, and the Court began to strike down restrictions on speech that would have been accepted in the past even by the most ardent defenders of free speech. And so the Court would come to the rescue of the Reverend Fred Phelps and his Westboro Baptist Church as they harassed the funeral of a dead marine with signs saying “Semper Fi Fags” and “Thank God for Dead Soldiers.”⁴³ In this new willingness to protect all speech, no matter how scurrilous and vicious, only Justice Alito seemed attentive to that light that still lingered, growing ever fainter, from the ruling in Chaplinsky.

But something suddenly changed again sometime in the middle of 2017. Perhaps it had something to do with the rising intolerance of the left on the campuses, with the widely spreading “cancel culture.” Limiting speech was no longer a matter of fastening on that tight class of insults and epithets instantly and widely understood. The move now was to ban from the campuses genuine substantive arguments on the most contested moral questions of the day. It might have occasioned no surprise that even conservative judges, faced with a wave of illiberalism, would have sought some line of defense for speech that did not depend on reasoning overly refined. But what came suddenly was a lurch to the side of what might be called, sympathetically, a “soft and strategic relativism,” or a relativism decorously covered over in the hope of shoring up more protections of speech. This sudden move seemed to be born of desperation. The conservative justices seemed to be seeking some tenable line that would slow the wave of repression running through the campuses and flowing over into our political life out of doors. But with that move, it might be said that the bottom fell out of their First Amendment jurisprudence. For on the basis of moral relativism, it becomes ever harder to explain why an affable willingness to tolerate and protect even the assaulting and the vicious counts in any way as a “good” to be savored and preserved and woven into our laws. What began as move of desperation soon revealed itself as the mark of a jurisprudence on a downward spiral.