Fighting Words

Episode Notes

Transcript

Make No Law: The First Amendment Podcast

Fighting Words

01/31/2018

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Walter Chaplinsky: You are a God damned racketeer and a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.

Ken White: On April 6, 1940, a man named Walter Chaplinsky spoke those words in anger to a police officer in Rochester, New Hampshire. He was arrested, prosecuted and convicted under a New Hampshire Statute that made it a crime to say something offensive or derisive or annoying to somebody lawfully in the street.

He appealed his case all the way to the United States Supreme Court. And in 1942, the Court ruled against him in the famous case Chaplinsky v. New Hampshire. The Court articulated an exception to the Free Speech Protection to the First Amendment, the so-called Fighting Words Doctrine, and the Court said that some words, by their very utterance, inflict injury or tend to incite an immediate breach of the peace and therefore can be punished by the government.

All that is well-known, even if very little on the fighting words doctrine survives, people invoke it every day to argue for restrictions on upsetting or offensive speech. But, here is what most people don’t know.

Why was Walter Chaplinsky angry? Why was he talking to a police officer in the first place? Why would the authorities of Rochester, New Hampshire bother to prosecute such a petty offense and why would the Supreme Court choose such a small incident to announce such an important doctrine?

Was Walter Chaplinsky’s case really about preventing breaches of the peace? Or was it about something less admirable, something darker in American culture? To answer those questions, we have to go back further earlier than Walter Chaplinsky’s 1940 outburst. We have to go back to November of 1935, to a letter written by a 10-year-old boy in Minersville, Pennsylvania.

I’m Ken White and this is Make No Law: The First Amendment Podcast for Popehat.com, produced by the Legal Talk Network. This is our first episode ‘Fighting Words.’

[Music]

Ken White: On November 5, 1935 a 10-year-old boy named Billy Gobitis wrote a letter. You can see a copy of the letter online at Popehat, on the page about this episode. It look likes the writing of a 10-year-old boy, it’s carefully cursive, slopes to the right, a little smudged, a little messy.

Billy wrote the letter to the School Directors of Minersville. He wrote it because he had something in common with Walter Chaplinsky, even five years before Chaplinsky’s arrest. Billy and Walter were both Jehovah’s Witnesses. Here’s what Billy said.

Samantha Cole as Billy Gobitis: “Minersville, Pennsylvania (November 5, 1935). Our School Directors, Dear Sirs: I do not salute the flag because I have promised to do the will of God. That means that I must not worship anything out of harmony with God’s law. In the 20^th chapter of Exodus it is stated, “Thou shalt not make unto thee any graven image, nor bow down to them nor serve them for I the Lord thy God am a jealous God visiting the iniquity of the father upon the children unto the third and fourth generation of them that hate me. I am a true follower of Christ. I do not salute the flag not because I do not love my country but I love my country and I love God more and must obey His commandments. Your pupil, Billy Gobitis.”

Ken White: Billy Gobitis is Jehovah’s Witness, didn’t feel he could salute the flag, but the School District required him to salute it. So, his letter expressed a dilemma that’s as old as Sophocles, it’s the conflict between the laws of man and the laws of God, and as the case has been so often historically, that conflict went very badly for Billy Gobitis. He and his sister, Lillian, who was 12, were expelled. Their parents had to pay to put them in private school because school attendance was compulsory in Pennsylvania.

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A lot of Jehovah’s Witness parents got prosecuted in these circumstances across America.

Eventually, Billy Gobitis’ father sued on his behalf, asking for a court order that the School District’s pledge requirement was unconstitutional, a violation of his First Amended rights. The District Court agreed and so did the United States Court of Appeals for the Third Circuit, but then Supreme Court accepted the case.

In June of 1940, just a couple of months after Walter Chaplinsky was arrested in Rochester, the Court issued an 8-1 decision, saying that the Minersville School District could expel Billy and Lillian Gobitis if they didn’t pledge allegiance to the flag, even if that did violate their religious beliefs.

Justice Frankfurter, writing for the court explains the value of obedience.

Terry Carter as Justice Frankfurter: The question remains whether school children, like the Gobitis children, must be excused from conduct required of all the other children in the promotion of national cohesion. We are dealing with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security.

Ken White: Even today, we have very bitter public arguments on this conflict, between civic laws and religious beliefs. Does a Christian baker have to make a cake for a same sex wedding? Does a religious employer have to pay to provide medical insurance that includes coverage for birth control? But in the late 1930s and early 1940s, those conflicts spilled blood.

Jehovah’s Witnesses in America were subjected the sort of assaults, and abuse, and injustice that we normally associate with the worst days of America’s Civil Rights Movement.

The Gobitis case was taken by too many as an excuse for more violence and abuse. I talked to Shawn Peters, Professor at the University of Wisconsin-Madison about it. He’s the author of a book called ‘Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution.’

Shawn Peters: It was one of the most wide spread, pervasive and intense periods of religious persecution in American history. I think, to draw parallels to what happened to the Mormons in the later part of the 19^th Century, I think is appropriate. I mean Jehovah’s Witnesses were arrested, they were denied relief benefits, they were expelled from school, they were beaten in every manner possible.

They were attacked often physically because of their religious beliefs and it’s something that I don’t know that it has been quite that intense and quite that widespread in particular periods of American history. It was really an extraordinary time and it was — it’s a chapter in American history that most people don’t know about or appreciate, but I think it’s an important part of who we are as people and sort of how we behave in periods of national crisis.

Ken White: I asked him why this was happening in the 1930s and 1940s to Jehovah’s Witnesses in America.

What was it about these times that led to this?

Shawn Peters: It’s a combination of factors I think that led to the Jehovah’s Witnesses being targeted in the United States in the 1930s and 1940s. One of them, to be honest, is the Witnesses themselves, they adapted sort of more aggressive proselytizing techniques. They were just out there more and they were a little bit more provocative, and I think that they did this on purpose. They wanted to get their message out, and they wanted to confront people with the ideas and the principles that they were espousing.

One of those ideas and principles was the idea that saluting the American flag was a form of idolatry, and they refused to salute and generally participate in patriotic exercises. And this is the other factor that kind of — these things sort of come together in a really potent combination, is obviously as World War II approached and then commenced, feelings of patriotism in the country were extremely intense and high.

And so, you had people who were on the one hand, feeling more in love with their country, and more sort of connected to patriotic rituals, and then you had this provocative group, coming along and saying, you know what, because of our religious beliefs, we don’t want to participate in these patriotic rituals.

There was also a belief too connected with the onset of the war that spies and saboteurs were roaming the country, working for the Nazis. And it was widely believed, incorrectly, that the Jehovah’s Witnesses were sort of in league with the Nazis, but the real tragic irony there, of course, is that the witnesses were among the first groups targeted by the Nazis, specifically, because their refusal to engage in patriotic rituals in Nazi Germany, they wouldn’t offer the Hitler salute.

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So, that didn’t seem to matter. There was just this belief that these people weren’t patriots, at best they simply weren’t patriotic and at worse, they were actually in league with the Nazis.

Ken White: Though the Jehovah’s Witnesses’ preaching could be provocative and confrontational, the violence and injustice directed at them wasn’t limited to when they were in people’s faces.

Shawn Peters: Oftentimes witnesses would simply be innocently going door-to-door and distributing tracks and leaflets and books, and even then, patriotic groups, especially the American Legion, the Veterans of Foreign Wars, other groups would set upon them often round them up in groups.

So, it didn’t necessarily take someone on a street corner hurdling invective at people. Oftentimes, it was very, you would have groups of women and kids being arrested too and really for very calmly and respectfully preaching the Gospel in their own manner.

Ken White: I asked Professor Peters what role the Supreme Court’s decision in Gobitis had in this wave of abuse?

Shawn Peters: Certainly, the Supreme Court’s ruling in the Gobitis’ flag salute case appeared to give sanction to the suppression of Jehovah’s Witnesses. Obviously, the opinions itself was very narrow, it related to a particular — just the compulsion of flag salute exercises in public schools. There was in no way an endorsement of mob violence or any of these other things; but, lots of people at that time said, “Uh-huh, see the Supreme Court agrees that the Jehovah’s Witnesses aren’t patriotic Americans.” So, there was a wide spread misreading of Gobitis at the time.

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Ken White: In January of 1941, about six months after the Supreme Court issued that Gobitis decision, the American Civil Liberties Union published a pamphlet telling some of the stories of Jehovah’s Witnesses who had experienced abuse in America. Here, for instance, is what Albert Strobel of Flagstaff, Arizona said.

Chad Jolly as Albert Stroble: On Wednesday evening, June 19, 1940, my dad and I drove to Ashford from Williams to contact two fellow workers at a friend’s house. I drove up in front of the house and went up on the porch when three men stepped into the yard up on the porch and said, “Are you looking for anyone?” and then “Will you salute the flag?”

And when I replied that I respected the flag but was consecrated to do God’s will and did not salute or attribute salvation to the flag, they cried, Nazi spy. Knocked me down, beat me badly and finally knocked me out. Then dragged and pushed me across the street to a service station and again tried to make me salute the flag.

I was dizzy, befuddled and don’t clearly remember anything except that a considerable crowd had gathered yelling, Nazi spy, Hail Hitler, string him up, chop his head off. A Deputy Sheriff appeared later, he took me to a local jail and put my dad and I in a cell as he said, to protect you from the mob and rest you up.

Ken White: Gertrude Bobb of Kennebunk, Maine tells us what happened in the summer of 1940 when a mob attacked the Jehovah’s Witnesses’ meeting place at Kingdom Hall.

Kelsey Johnson as Gertrude Bobb: One day during the last week of September 1939 at approximately 5 p.m. I went with Edwin Bobb, my husband, and Richard Trask to the home of a Deputy Sheriff of York County to tell him of the plans of the French Catholics to break up our meeting, and to ask for police protection.

I waited outside in the car while my husband and Richard Trask went inside. In a few minutes, they came out and I saw the sheriff swinging his arms and heard him shouting, “Don’t come here for protection and don’t go to any other deputy sheriffs because they are Legionaries, too. You’ll get no protection from them”.

We held the meeting without police protection. Kingdom Hall was packed with hoodlums. While I was sitting there, a rock crashed in and missed my head by about a foot.

Ken White: Some of the Jehovah’s Witnesses in Kennebunk, Maine were prosecuted based on that event, but nobody in the mob was prosecuted. Just three years later, in the case West Virginia State Board of Education v. Barnette, the Supreme Court reversed itself and held that the State could not compel a child to salute the flag in violation of their religious belief.

Justice Jackson redeemed the Court with some of the most sweeping language that’s ever been used to express the core values of the First Amendment.

Bob Story as Justice Jackson: If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

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We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power, and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.

Ken White: And with that, the era of the worst of the violence and abuse of Jehovah’s Witnesses in America began to ease.

Shawn Peters: And I do think that the Barnette opinion factored in, I do think that there was a consciousness when Barnette came along that the Supreme Court itself had changed its mind, and there had been a change of personnel but there had also been individuals in the Court who sort of realized the error in their ways.

Ken White: But it wasn’t just the Barnette opinion that made life better for the Jehovah’s Witnesses; it was the tide of history.

Shawn Peters: I think that there are a couple of factors. A part of it was I think the witnesses — I think that they maybe calibrated their activities a little bit. I think that they were somewhat less provocative and outlandish. But really, the main factor in the diminishing of their prosecution was that, the war sort of crested and then ended.

And I think when it became clear that the victory over Germany was going to be assured, victory over Japan was going to be assured, there was just less anxiety, there was less fear but there was this fifth-column threat, for instance. And I think people also had time to kind of reflect on the meaning of the war and the meaning of the principles for which the country extensively was fighting that war.

And I think people had time to sort of step back and say, I think maybe now, we need to understand that we need actually permit religious liberty. Certainly, that was one of the main critiques of Nazi Germany with their violent, horrific suppression of all sort of religious liberty. And so, people I think did understand the contradiction and fighting for religious liberty abroad and then suppressing it domestically.

Ken White: So with that history in mind, let’s go back. Back to April 6, 1940 in Rochester, New Hampshire and Walter Chaplinsky’s angry words.

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Walter Chaplinsky didn’t randomly accost a police officer on the street. When he was arrested, he was preaching on the street, preaching the beliefs of the Jehovah’s Witnesses.

Shawn Peters: What Chaplinsky was doing in Rochester, New Hampshire on that day was, that’s the way that Jehovah’s Witnesses really worshipped is by spreading the Gospel in public, and not necessarily, there is certainly a scriptural study involved too, but for them, their church is really the streets. And so, that was important at the time for them to be able to speak and march and do what they did freely in public because that was worship for them. It wasn’t just a kind of a sideline, it was kind of fundamental to their religious exercise.

Ken White: This is the way the Supreme Court of New Hampshire described it.

Jose Trujillo as New Hampshire Supreme Court: Chaplinsky was lawfully engaged, on the streets of Rochester, in the distribution of the literature of the sect known as Jehovah’s Witnesses. Some of those on the streets apparently resented his activities. They may have thought them provocative. At least they complained to the City Marshal, who says, he told them that Chaplinsky was lawfully engaged and that he must be left alone.

At the same time the Marshal says, he informed Chaplinsky that the crowd was getting restless and that he would better go slow. Some hours later, the crowd got out of hand and treated Chaplinsky with some violence. He was then led towards the police station though apparently more for his protection than for arrest. Since his arrest was definitely fixed only after he uttered the words “charged” when the marshal met him on the way.

Ken White: Walter Chaplinsky’s written account of what happened is even more stark. Here is how his attorney described the events in his legal brief to the Supreme Court.

While appellant was thus engaged in his work, a mob formed around him on the sidewalk. A tumultuous crowd of about 50 or 60 persons objected to his work and threatened him with violence if he did not discontinue. While the crowd was still around him, City Marshal, Bowering, accompanied by a man named Bowman came through the crowd and accosted appellant. And Bowman assaulted the appellant, catching him by the throat with his left hand and struck at him with his right fist. Whereupon appellant wrenched himself free and turned to Marshal Bowering and said:

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Appellant: Marshal, I want you to arrest this man.

Ken White: And Bowering answered —

Chad Jolly as Marshal Bowering: I will if I feel like it.

Ken White: Then Marshal walked away with Bowman and the appellant continued his work of offering the magazines containing the message of God’s Kingdom for distribution on the sidewalk.

In about four or five minutes, appellant looked down South Main Street and saw Bowman coming rapidly down the street with a staff and flag in his hand, with the staff pointed towards appellant. As Bowman came within about ten feet of appellant, he made a terrific lunge at appellant with the flagstaff as a spear in an effort to plunge the flagstaff through appellant who avoided the blow, but was pushed by Bowman into the gutter against an automobile as he passed appellant. Bowman then walked to the corner and gave the flag to another man and came back towards appellant and caught him up by the collar, and said:

Jeremy Church as Bowman: You son of a bitch.

Ken White: Bowman then asked the appellant.

Jeremy Church as Bowman: Will you salute the flag?

Ken White: The Marshal, Officer La Pierre and two others picked him up from the ground and scurried him along Wakefield Street towards the City Hall, shoving him along roughly. While doing so, the appellant turned to Marshal and asked:

Appellant: Will you please arrest the ones who started this fight?

Ken White: And the Marshal replied —

Chad Jolly as Marshal Bowering: Shut up you damn bastard and come along.

Ken White: Whereupon appellant said to him.

Appellant: You are a damn fascist, and a racketeer.

Ken White: But the jury didn’t hear about the crowd attacking Walter Chaplinsky. They only heard about what Chaplinsky said to the officer. The Trial Court excluded the evidence of the mob’s violence and didn’t let him argue to the jury that any angry words he spoke to that police officer came in response to the officer failing to protect him from an angry mob.

Walter Chaplinsky didn’t dispute at trial that he called the officer a racketeer and a fascist. The main factual dispute was whether he took God’s name in vain, and the Supreme Court’s description of the events of that day like the trial courts, is curiously peaceful and sanitized.

This is what Justice Frankfurter said about why Chaplinsky’s words could be punished despite the First Amendment.

Terry Carter as Justice Frankfurter: It is well understood that the right of free speech is not absolute at all times and under all circumstances. 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 are fighting words, those which by the 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.

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Ken White: So, the United States Supreme Court upheld Walter Chaplinsky’s conviction on those grounds. But is it still good law?

You hear the term “Fighting Words” run around quite a lot today when people argue about what speech is protected by the First Amendment, and what speech isn’t. It’s a particularly popular justification for suggestions that we should ban racist or otherwise offensive speech, but in fact the fighting words doctrine still survives. It’s very narrow, not nearly as broad as the case’s original language suggests. At most, it allows punishment of face-to-face insults, directed at a particular person and likely to cause an immediate fight.

Since Chaplinsky v. New Hampshire, the history of the fighting words doctrine is mostly a history of Court saying that it doesn’t apply or doesn’t excuse the restriction on speech at issue in the particular case.

So in 1971, when the Supreme Court considered Robert Cohen’s jacket emblazoned with “Fuck the Draft.” The court said that the words, while provocative weren’t fighting words, because they weren’t an insult directed at anyone in particular.

In 1989, the Supreme Court considered the conviction of Gregory Lee Johnson who had burned the American flag in front of Dallas City Hall during the Republican National Convention. The Court again emphasized the provocative act wasn’t directed at anyone in particular. No reasonable on-looker would have regarded Johnson’s generalized expression to satisfaction with the policies of the Federal Government as a direct personal insult or an invitation to exchange fisticuffs, the Court said.

In Snyder v. Phelps in 2011, the Court considered the Westboro Baptist Church and its vile protest at the funeral of a Marine killed in action in Iraq using signs like “Thank God for Dead Soldiers” and “You’re Going to Hell.”

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The court brushed aside fighting words without arguments in a footnote, a self-evidently not applying.

The Supreme Court has been cutting back the fighting words doctrine for so long that in 1972 Justice Blackmun commented at the Supreme Court though saying that Chaplinsky was still good law, was merely paying lip service to it.

In fact, even the core factual scenario of Chaplinsky v. New Hampshire has been undermined. Remember, Chaplinsky was convicted for using fighting words against a police officer, but some courts have suggested that the fighting words doctrine does not apply to abusive words directed to a police officer because we presume that a police officer is more disciplined than an average citizen and less likely to respond with violence, that’s the difference between a presumption and a fact.

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So, if Walter Chaplinsky’s case isn’t good law anymore, what does it teach us? I think that it teaches us about how exceptions to the First Amendment are framed and applied in American law. There is a reason that the police chose to prosecute Walter Chaplinsky for an outburst at a cop who had failed to protect him, and yet not prosecute anyone who physically attacked him.

There is a reason that the Trial Court excluded Walter Chaplinsky’s story of the mob’s abuse at his trial. The reason is that he was a religious minority, an outcast. There is more to the story, more to the context in the sanitized version of the facially neutral rule the Supreme Court announced. Walter Chaplinsky, like Billy Gobitis, like so many other Jehovah’s Witnesses in America was mistreated because of his believes and the power of the State was directed against him, perhaps the State couldn’t go as far as to prosecute him for preaching his beliefs just because of an angry mob’s reaction, but it could do the next best thing and bring petty charges against him for a harmless outburst.

Exceptions to the First Amendment are often built on the backs of the powerless and the despised.

In this series of podcasts, I’ll be telling more stories behind important First Amendment decisions. If there is a case you want to hear about or a First Amendment question, you would like answered on the podcast, drop me a line at [email protected].

Thanks for listening. You can find documents and cases mentioned on this podcast at  HYPERLINK “http://www.popehat.com” popehat.com or  HYPERLINK “http://www.legaltalknetwork.com” legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple podcasts and Google Play, and follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, voice actors, producers, and audio engineers for their participation.

My guest, Professor Shawn Peters of the University of Wisconsin-Madison, Trent Carlyle played Walter Chaplinsky; Samantha Cole as Billy Gobitis; the ABA Journal’s Terry Carter as Justice Frankfurter; Chad Jolly as Albert Strobel and Marshal Bowering; Kelsey Johnson as Gertrude Bobb; Bob Story as Justice Jackson; Jose Trujillo as the New Hampshire Supreme Court; Jeremy Church as Bowman; producer Kate Nutting, Executive Producer Laurence Colletti, and last but not least music, sound design, editing and mixing by Adam Lockwood.

See you next time for Episode #2, ‘Schoolhouse Gates.’

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Female Speaker: So much of the experience was really just a story about ordinary kids just doing ordinary things and that’s certainly how I felt, and we thought it was pretty ordinary actually even towards the ironmans. I mean, we didn’t — we had no idea that was going to turn into a big-big deal.

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Outro: The views expressed by the participants of this program are their own and do not represent the views of nor are they endorsed by Popehat, Legal Talk Network or their respective officers, directors, employees, agents, representatives, shareholders, or subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer, please.

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