Prior to the Roberts Court, the Supreme Court dealt with important questions of free speech, such as libel, commercial communications, and “fighting words.” The Court has taken a new path, focusing on the importance of tradition (Margarian, 2015, p. 1346, para. 2), an argument which could be summarized as ‘if we haven’t restricted it before now, we shouldn’t restrict it now.’ Although in the past, noncoverage of speech under the First Amendment was based on categories such as obscenity, libel, or incitement to treason, the Roberts Court has declined to expand these categories to analogous situations (U. S. v. Stevens) (Margarian, 2015, pp. 1342, para. 2) and denied requests for new categories (Brown v. Entertainment Merchants Association) (Schauer, 2015, p. 1623, para. 2).
This paper will examine the following scenario and determine whether there is cause for prosecution: a group of friends have been arrested for disorderly conduct at a football game for shouting at passers-by after the game things such as “you guys suck” and “your team is a bunch of inbred hicks.” Also, upon being arrested by police, one shouted something like, “You dumb cops, go back to the donut shop where you belong.” Each is now claiming their speech was protected.
There are several considerations in this scenario. Does the friends’ speech fit any of the current categories that are not protected by the First Amendment? If so, is the definition of the category clear or is there controversy about it? Finally, what has been the Roberts Court’s recent decisions concerning that category?
One can easily see that the only category into which the friends’ speech is likely to fit is the “fighting words” category. This type of unprotected speech was defined by the 1942 case Chaplinsky v. New Hampshire, which involved a member of Jehovah’s Witnesses who cursed a police officer, calling him a Fascist and a racketeer (Margarian, 2015, p. 1342, p. 2). The man’s conviction was upheld and his words were described as “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace” (Wertheimer, 1994, p. 794, para. 2).
Fighting words are those spoken face-to-face and are so strong that they are likely to start a physical fight. Typically they also are directed at a particular person. In this case, the words were insulting, but not so much as to inflict injury or cause a fist fight. They were just yelled out in general, too, rather than being directed at a single person. The Court often uses the “reasonable man” test in cases of this kind. Would a “reasonable man (or woman)” get offended enough, based on the words spoken here, to hit, push, or otherwise physically attack the speaker? It is unlikely. Therefore, the shouts at the other team’s fans are protected by the First Amendment.
There is another category here, however, and that is speech directed at police officers. The courts have sometimes viewed officers as better trained to cope with belligerent, obscene, sarcastic, or abusive speech, and therefore have expected them to use more restraint than the average person (Farber, 2011, p. 302, para. 3). For example, in Lewis v. City of New Orleans, the U.S. Supreme Court determined that a New Orleans ordinance against cursing police was overbroad, overturning a conviction of a woman who was yelling obscenities and threats (Farber, 2011, p. 302, para. 2). In this instance, the accused merely stated that the police belonged in a donut shop. It is disrespectful, but is it abuse? I would say no, especially since, like the other statements, it was not directed at a single person. Therefore, I do not believe the people should be prosecuted for disorderly conduct. Their free speech protection claims would probably hold.