Categories of free speech

The idea that speech can be violence is a gross abuse of language. Black might as well be white.  It is just a Leftist subterfuge to get around the plain meaning of the first amendment

For the past 80 years, the Supreme Court’s ruling in Chaplinsky vs. New Hampshire has defined prohibited speech as “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.”

That standard is in shambles today. Talking heads on television routinely employ terms of opprobrium that a generation ago would qualify as libel; rappers have brought extreme forms of profanity into mainstream pop culture; and pornography is ubiquitous. Meanwhile seemingly harmless phrases such as “people who work hard in America get ahead in life” are banned by university speech codes, supposedly because they imply that minorities who don’t get ahead in life are lazy, and so forth.

The constitutional scholar Hadley Arkes opines, “The test in the old Chaplinsky case was clear enough to the man on the street, unburdened by a legal education: Whether he was a construction worker or a lawyer, would he recognize, when he heard them, words or gestures that demeaned and insulted?”

But I do not think that Arkes’s criteria apply  any longer. A large part of the US population, although not a majority, hears “microagression” in what to others seem like harmless statements. The collapse of a cultural consensus has turned us all into hypocrites. We maneuver around the minefield of easily-detonated resentments as best we can.

Thane Rosenbaum, a distinguished law professor and prolific writer, proposes to set limits to free speech in order to protect it. The matter is a minefield, and he wades into it fearlessly. But I am not convinced that he has found a solution.

In general his approach follows the Chaplinsky approach but with important qualifications. “There are limits to the First Amendment,” he writes, “categories of proscribed speech – ‘fighting words,’ libel and slander, ‘the incitement of imminent lawlessness,’ intimidation and ‘true threats’ – that are essentially deemed as non-speech and therefore are outside the operation of the First Amendment.”

Rosenbaum likes the European and Canadian approach, which seeks to protect dignity and privacy. Civil law, he observes, regards emotional damage from slander as more serious than physical damage. In some cases that has applied to criminal law as well

Rosenbaum cites a Texas case in which a restaurant manager publicly humiliated a black diner. The manager was found guilty of battery, because “personal indignity is the essence of an action for battery, and consequently, the defendant is liable not only for contacts wich do actual physical harm, but also for those which are offensive and insulting.”

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