Content Regulation / Censorship, Indecency / Obscenity
Bobby Art International v. Hoon
Closed Contracts Expression
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The United States Supreme Court, affirming a decision of the Supreme Court of New Hampshire, held that the statute under which the appellant had been convicted was narrowly drawn and limited and therefore did not place an unreasonable restriction on freedom of speech as guaranteed by the Constitution.
Chaplinsky had called the City Marshal of Rochester, New Hampshire, “a God damned racketeer” and “a damned Fascist,” following a disturbance while Chaplinsky was distributing pamphlets on the Jehovah’s Witnesses religious sect. A municipal court in Rochester convicted Chaplinsky under a state statute banning offensive words to others in public. The Supreme Court of New Hampshire affirmed the conviction following a trial ‘de novo’ in the Superior Court.
The court said that the constitutional right to freedom of speech is not absolute and that obscene, profane, libelous and insulting words that by their very utterance, inflict injury or tend to incite an immediate breach of the peace, such as those used by the appellant, came within the limited class of speech known as “fighting words,” and were a reasonable exception to the right to freedom of speech.
One Saturday afternoon in Rochester, New Hampshire, Chaplinsky was publicly distributing literature of the Jehovah’s Witnesses, his religious sect, denouncing religion as a “racket.” Local citizens complained to City Marshal Bowering about Chaplinsky. Bowering informed the Rochester citizens that “Chaplinsky was lawfully engaged, [but] then warned Chaplinsky that the crowd was getting restless.” (at 570.)
Later, “a disturbance” or “a riot” took place, and a local on-duty officer detained Chaplinsky but did not inform him that “he was under arrest or that he was going to be arrested.” Bowering, headed to the scene of the disturbance, met the officer and Chaplinsky near the entrance to city hall. Chaplinsky said to Bowering, “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” (at 569.) Chaplinsky was subsequently arrested.
Chapter 378, § 2, of the Public Laws of New Hampshire (“Section 2”) provides that 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.” A municipal court of Rochester convicted Chaplinsky under Section 2, finding the words Chaplinsky directed toward Bowering near city hall “offensive, derisive and annoying words and names.” (at 569, quoting the complaint in the municipal court.)
A jury in the New Hampshire Superior Court found Chaplinsky guilty, and the Supreme Court of New Hampshire affirmed the conviction. The United States Supreme Court agreed to hear Chaplinsky’s appeal challenging the statute banning offensive words or names, on the grounds that it placed an unreasonable restraint on freedom of speech and that it was vague and indefinite.
Murphy, J., delivered the opinion of the United States Supreme Court. The First Amendment to the United States Constitution prohibits the federal government from making laws that abridge the freedoms of speech, of the press, and of worship. The First Amendment similarly applies to the states, as its protections are within “the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action.” (at 570-71, quoting U.S., Lovell v. Griffin at 450.))
Despite Chaplinksy’s argument that all three of his freedoms (of speech, of the press, and of worship) were infringed upon, the Court found Chaplinsky’s case applied only to freedom of speech. The content of Chaplinsky’s literature was not at issue, and the Court could not “conceive that cursing a public officer is the exercise of religion in any sense of the term.” (at 571.)
Although the right to free speech is substantial, it “is not absolute at all times and under all circumstances.” (at 571.) According to well-established Supreme Court jurisprudence, the U.S. Constitution permits the regulation and restriction of “well-defined and narrowly limited classes of speech.” (at 571.) These limited classes of speech include obscene (lewd) speech, slander and libel, and “fighting words.” Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” (at 572.) Such words or epithets are viewed as having little to no social value, having their little value outweighed by society’s interest in morality and order, and incapable of forwarding public dialogue or the sharing of ideas.
Turning to the text of the law, the Court deferred to the New Hampshire Supreme Court’s interpretation of the state’s statute. In previous decisions, the New Hampshire court had determined that the “the statute’s purpose was to preserve the public peace,” and that the only words punishable by the statute were those which “‘have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed.’” (at 573, quoting State v. Brown; State v. McConnell.)
Further, whether words are “offensive” is not up to any individual hearing the word, but is an objective test of those “what men of common intelligence would understand would be words to cause an average addressee to fight” (at 573). The New Hampshire Supreme Court had interpreted “offensive, derisive or annoying word[s]” in identical terms to the United States Supreme Court’s definition of “fighting words.” For this reason, the Court concluded the statute was “narrowly drawn and limited to define and punish” fighting words, or words “plainly tending to excite the addressee to cause a breach of the peace.” (at 573.) Because the statute was narrowly drawn (based on the New Hampshire court’s interpretation) it was inherently not so vague as to be a violation of Chaplinsky’s due process.
Having concluded that Section 2 was constitutional, the Court went on to consider its application to convict Chaplinsky. The Court found argument “unnecessary to demonstrate that the appellations ‘damned racketeer’ and ‘damned Fascist’ are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace,” i.e., they are fighting words punishable by the statute. Therefore, Chaplinsky’s conviction did not substantially or unreasonably interfere with his freedom of speech.
The Court did not rule on the legality of the state’s exclusion of evidence regarding provocation or truth of the words. Those evidentiary objections were not constitutional issues, and were left to the state and its courts. The statute was a constitutional restriction on fighting words likely to provoke a violent reaction, and constitutional as applied to Chaplinsky’s “damned Fascist” and “damned racketeer” comments.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision contracts expression because it upholds an exception to the public’s right to freedom of expression that criminally punishes the use of words that are likely to cause a breach of the peace.
More recently states have taken the view that the right to freedom of expression extends to unpopular ideas and statements which “shock, offend or disturb” and only incitement which is intended to cause imminent violence justifies restricting such a fundamental right.
Furthermore, in the Chaplinsky case, the Court held that the relevant statute was not vague and indefinite even though it explicitly banned any “offensive, derisive or annoying word” addressed to another in public.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
United States Supreme Court cases are binding, mandatory authority on all jurisdictions in the United States of America. Although Justice Murphy delivered the majority opinion of the Court, the Court was unanimous in ruling in favor of the State of New Hampshire.
Let us know if you notice errors or if the case analysis needs revision.