National Socialist Party v. Skokie (1977), by U.S. Supreme

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Re: National Socialist Party v. Skokie (1977), by U.S. Supre

Postby admin » Fri Apr 08, 2016 3:48 am

Chaplinsky v. New Hampshire
315 U.S. 568 (1942)
No. 255.
Supreme Court of United States.
Argued February 5, 1942.
Decided March 9, 1942.


Mr. Hayden C. Covington, with whom Mr. Joseph F. Rutherford was on the brief, for appellant. Mr. Alfred A. Albert entered an appearance.

Mr. Frank R. Kenison, Attorney General of New Hampshire, with whom Mr. John F. Beamis, Jr. was on the brief, for appellee.

569*569 MR. JUSTICE MURPHY delivered the opinion of the Court.

Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New Hampshire:

"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, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation."

The complaint charged that appellant, "with force and arms, in a certain public place in said city of Rochester, to wit, on the public sidewalk on the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat, the words following, addressed to the complainant, that is to say, `You are a God damned racketeer' and `a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists,' the same being offensive, derisive and annoying words and names."

Upon appeal there was a trial de novo of appellant before a jury in the Superior Court. He was found guilty and the judgment of conviction was affirmed by the Supreme Court of the State. 91 N.H. 310, 18 A.2d 754.

By motions and exceptions, appellant raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States, in that it placed an unreasonable restraint on freedom of speech, freedom of the press, and freedom of worship, and because it was vague and indefinite. These contentions were overruled and the case comes here on appeal.

There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a "racket." Bowering told them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting restless. Some time later, a disturbance occurred and the traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way, they encountered Marshal Bowering, who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in the complaint.

Chaplinsky's version of the affair was slightly different. He testified that, when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint, with the exception of the name of the Deity.

Over appellant's objection the trial court excluded, as immaterial, testimony relating to appellant's mission "to preach the true facts of the Bible," his treatment at the hands of the crowd, and the alleged neglect of duty on the part of the police. This action was approved by the court below, which held that neither provocation nor the truth of the utterance would constitute a defense to the charge.

It is now clear that "Freedom of speech and freedom of the press, which are protected by the First Amendment from infringement by Congress, are among the fundamental personal rights and liberties which are protected by the Fourteenth Amendment from invasion by state action." Lovell v. Griffin, 303 U.S. 444, 450.[1] Freedom of worship is similarly sheltered. Cantwell v. Connecticut, 310 U.S. 296, 303.

Appellant assails the statute as a violation of all three freedoms, speech, press and worship, but only an attack on the basis of free speech is warranted. The spoken, not the written, word is involved. And we cannot conceive that cursing a public officer is the exercise of religion in any sense of the term. But even if the activities of the appellant which preceded the incident could be viewed as religious in character, and therefore entitled to the protection of the Fourteenth Amendment, they would not cloak him with immunity from the legal consequences for concomitant acts committed in violation of a valid criminal statute. We turn, therefore, to an examination of the statute itself.

Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well understood that the right of free speech is not absolute at all times and under all circumstances.[2] 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.[3] These include 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.[4] 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.[5] "Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Cantwell v. Connecticut, 310 U.S. 296, 309-310.

The state statute here challenged comes to us authoritatively construed by the highest court of New Hampshire. It has two provisions — the first relates to words or names addressed to another in a public place; the second refers to noises and exclamations. The court said: "The two provisions are distinct. One may stand separately from the other. Assuming, without holding, that the second were unconstitutional, the first could stand if constitutional." We accept that construction of severability and limit our consideration to the first provision of the statute.[6]

On the authority of its earlier decisions, the state court declared that the statute's purpose was to preserve the public peace, no words being "forbidden except such as have a direct tendency to cause acts of violence by the persons to whom, individually, the remark is addressed."[7] It was further said: "The word `offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which by general consent are `fighting words' when said without a disarming smile. . . . Such words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace.. . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including `classical fighting words', words in current use less `classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats."

We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace. Cf. Cantwell v. Connecticut, 310 U.S. 296, 311; Thornhill v. Alabama, 574*574 310 U.S. 88, 105. This conclusion necessarily disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not unduly to impair liberty of expression, is not too vague for a criminal law. Cf. Fox v. Washington, 236 U.S. 273, 277.[8]

Nor can we say that the application of the statute to the facts disclosed by the record substantially or unreasonably impinges upon the privilege of free speech. Argument is 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.

The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or falsity of the utterances, is open to no Constitutional objection. Whether the facts sought to be proved by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for the state court to determine. Our function is fulfilled by a determination that the challenged statute, on its face and as applied, does not contravene the Fourteenth Amendment.




[1] See also Bridges v. California, 314 U.S. 252; Cantwell v. Connecticut, 310 U.S. 296, 303; Thornhill v. Alabama, 310 U.S. 88, 95; Schneider v. State, 308 U.S. 147, 160; De Jonge v. Oregon, 299 U.S. 353, 364; Grosjean v. American Press Co., 297 U.S. 233, 243; Near v. Minnesota, 283 U.S. 697, 707; Stromberg v. California, 283 U.S. 359, 368; Whitney v. California, 274 U.S. 357, 362, 371, 373; Gitlow v. New York, 268 U.S. 652, 666.

Appellant here pitches his argument on the due process clause of the Fourteenth Amendment.

[2] Schenck v. United States, 249 U.S. 47; Whitney v. California, 274 U.S. 357, 373 (Brandeis, J., concurring); Stromberg v. California, 283 U.S. 359; Near v. Minnesota, 283 U.S. 697; De Jonge v. Oregon, 299 U.S. 353; Herndon v. Lowry, 301 U.S. 242; Cantwell v. Connecticut, 310 U.S. 296.

[3] The protection of the First Amendment, mirrored in the Fourteenth, is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication. Near v. Minnesota, 283 U.S. 697, 714-715.

[4] Chafee, Free Speech in the United States (1941), 149.

[5] Chafee, op. cit., 150.

[6] Since the complaint charged appellant only with violating the first provision of the statute, the problem of Stromberg v. California, 283 U.S. 359, is not present.

[7] State v. Brown, 68 N.H. 200, 38 A. 731; State v. McConnell, 70 N.H. 294, 47 A. 267.

[8] We do not have here the problem of Lanzetta v. New Jersey, 306 U.S. 451. Even if the interpretative gloss placed on the statute by the court below be disregarded, the statute had been previously construed as intended to preserve the public peace by punishing conduct, the direct tendency of which was to provoke the person against whom it was directed to acts of violence. State v. Brown, 68 N.H. 200, 38 A. 731 (1894).

Appellant need not therefore have been a prophet to understand what the statute condemned. Cf. Herndon v. Lowry, 301 U.S. 242. See Nash v. United States, 229 U.S. 373, 377.
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Re: National Socialist Party v. Skokie (1977), by U.S. Supre

Postby admin » Thu May 24, 2018 10:26 pm

Come Undressed [Excerpt from “Right Reason”]
by William F. Buckley, Jr.
September 6, 1980



Chapter 7: Come Undressed

It is axiomatic that the village underworlder will seek the approval of the same community he systematically despoils by ostentatious public benefactions. Joe Bananas supporting the local church. Billy Sol Estes hosting a Boy Scout picnic. Louib B. Mayer contributing to an institute of higher learning. No one has practiced the art of civic diversion more prodigiously than Hugh Hefner, the founder of Playboy magazine and godfather of the sexual revolution. His formula was as straightforward as the advertisements in Playboy for sexually stimulating paraphernalia: make a lot of money by pandering to the sexual appetite, elevating it to primacy – then spend part of that money co-seducing critics or potential critics.

It was years ago that Harvard theologian Harvey Cox wrote an essay on Playboy, denominating it the single most brazen assault on the human female in general circulation. What seemed like moments later, the same scholar found himself writing earnest essays for Playboy; and before long he forgot all about his mission to identify Playboy for what it essentially is: an organ that seeks to justify the superordination of sex over all other considerations – loyalty to family, an principle of self-discipline, any respect for privacy, or for chastity or modesty: sex omnia vincit, Hugh Hefner’s magazine told us, issue after issue. But the genius of Hugh Hefner lay in the embellishments. Walking down his massage parlors, you find the hallways decorated with facsimiles of the Bill of Rights, illuminated scrolls from Milton’s Areopagitica, earnest rebukes of any impositions on our privacy if committed by the Central Intelligence Agency. The passageway to the brothel takes you through the vaulted cathedrals of piety and self-mortification, sacrifice and social concern.

Really, I wonder if anyone in the future can ever again take seriously the Anti-Defamation League. Here is an organization “dedicated to the combating of prejudice and discrimination against Jews and other minorities, and to the protection and extension of our democratic system for the benefit of all Americans.” “The League” the brochure continues, “works with the various institutions of our society, public and private, religious and secular, to achieve these ends.” And it is celebrating later this month its First Amendment Freedoms Award by giving a dinner-dance in honor of – Hugh M. Hefner. About the honoree the ADL says, with an apparently straight face, that he “began with little more than a unique idea for a magazine”(nude women, jokes about copulation, and advice on how to seduce young girls) “and a philosophy of social change.” (The “philosophy,” quite simply, that the gratification of the male sexual impulse is to be achieved without any second thought to the possible effect on a) the girl, b) her family, c) your family, d) any code of self restraint.) “The empire he founded has had a far-reaching impact, not only on the publishing industry, but on the mores of American society as well.” That is correct. Any serious disciple of Hugh Hefner would not hesitate to purr anti-Semitic lovelies into the ears of his bunny, if that was what was required to effect seduction.

The Anti-Defamation League has, in the past, surrendered to temptations alien to its splendidly commendable purpose, namely to focus public attention on, and bring obloquy to, acts of racial discrimination. It meddled actively in the presidential campaign of 1964, endeavoring to scare its clientele into believing that Senator Goldwater was an ogre of sorts, backed by fanatics and atavists. Its current director, Mr. Nathan Perlmutter, is a man of high sensibility, gentle, firm, discriminating, a scholarly man long associated with Brandeis University. One notes that he is charging $250 a plate to guests who seek the privilege of joining with him to honor Hugh Hefner. The tawdriness of the symbolism is driven home. Even as Hugh Hefner sells pictures of parted pudenda in order to make the dollar, a nickel of which he donates to institutions devoted to the rights of Nazis to march in Skokie and of fellow pornographers to hawk their wares, the ADL raises money to combat discrimination by honoring the principal agent of the kind of selflessness that deprives racial toleration of the ultimate sanction. This sanction rests on a profound belief in the sanctity of the individual – yes, even that of the nubile girl.

Take away from the struggle for racial toleration the profound spiritual commitment to the idea of a higher law, and the code against anti-Semitism becomes a mere matter of social convenience, the kind of upwardly mobile patter one is taught in the pages of Playboy to imitate, on the order of wearing Dior handkerchiefs or Gucci loafers. Racial toleration draws its principal strength from the proposition that we are all brothers, created equal by God. The Playboy philosophy measures human worth by bust line and genital energy. The affair will be celebrated, appropriately enough, in Hollywood, at the Century Plaza Hotel. The invitation specifies “black tie.” Well, if the guests arrive wearing only black ties, that will be more than some of the guests wear at Hef’s other parties.
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