Laws prohibiting "fighting words"

Canadian Code Section 319(2) makes a crime: "promoting hatred against any identifiable group" [p. 128]

University of Wisconsin code punished comments that "demean" or which create "an intimidating, hostile or demeaning environment for education" [p. 140]

University of Michigan code punished conduct that "stigmatizes or victimizes" [p. 140]

University of Pennsylvania forbade "any behavior that stigmatizes or victimizes . . . and that has the purpose or effect of interfering with an individual's academic or work performance; and/or creates an intimidating or offensive academic, living, or work environment" [p. 140]

University of Connecticut rules punished use of "derogatory names, inappropriately directed laughter, inconsiderate jokes, and conspicuous exclusion from conversation" [p. 140]

Rutgers prohibited "insult, defamation, and harassment" which included "belittling comments" [p. 140]

Stanford prohibited speech "intended to insult or stigmatize" [p. 143]

Emory University prohibited "discriminatory harassment" defined as conduct "creating an offensive, demeaning, intimidating, or hostile environment". [p. 144]

Skokie Ordinance 994 prohibited inciting "violence, hatred, abuse or hostility" [p. 109]

Skokie Ordinance 995 prohibited material "which promotes and incites hatred . . . and is intended to do so." [p. 109]

1. Fish's Answer

A. Fish's Target: The Speech-Action Distinction

(1) The Presumption that Speech is not to be Regulated

[Standard exclusions: slander, incitement to violence, shouting "Fire" in a crowded theater, insults or "fighting words", threats (verbal assaults), conspiracy to commit a crime]

(2) Fish claims that the definition of "fighting words" is political.

(3) Fish claims that the definition of "protected speech" is political.

(a)) The Example of John Milton

What the Milton Example Really Shows:

The Question of Tolerating the Intolerant

B. Fish's "Political" Conclusion: Regulate Speech When the Consequences will be Better than No Regulation [Same test as for ACTION]-

(1) First Issue: Is (At Least Some) Speech Special? That is, is there a Principled Reason for Requiring that Regulations on (At Least Some Kinds of) Speech Satisfy a Different Standard from Regulations on Other Types of Action?

(2) Second Issue: The Problem of Potential Abuse.

Mill's Answer

A. Speech can be true or false (has PROPOSITIONAL CONTENT) and we use speech to GIVE REASONS for a belief or a change in belief.

B. The Three Truth-Related Arguments

(1) The Presumption of Infallibility Argument

(2) The Portion of Truth Argument

(3) The Rational Grounds Argument

(4) The Potential Abuse Argument (Not in the selection we read)

C. Mill's Answer to Fish [p. 32]

PRELIMINARY CONCLUSION FROM MILL'S ARGUMENTS: No restrictions on speech based on PROPOSITIONAL CONTENT:

(1) Purely descriptive statements

(2) Normative statements

(3) Exceptions: Lying?

(4) What about hate speech? The content of hate speech is NOT PROPOSITIONAL but EXPRESSIVE.

A. The Morality of Liberal Science

1. The Price of the No Offense Society:

Example of Japan

B. Who Decides?

1. The Inquisition

2. Plato's Republic

C. Who Determines Intent?

D. The Potential Abuse Problem

"People who like authoritarianism always picture themselves running the show" [p. 146]

Some Questions for Rauch:

(1) What About Speech that is Intentional Lying?

(2) What About Speech That is Only Intended to Cause Pain?

Four Arguments Considered by the Court:

(1) False statements, totally lacking in social content:

Government not to determine truth and falsity

(2) Libelous/fighting words:

Depends on tendency to cause violence and disorder, which are not claimed in this case.

(3) Undercuts fair housing policy:

Not a basis for limiting expression.

(4) Infliction of psychic trauma on residents

No claim of unavoidability (no invasion of privacy or captive audience).