In 1992, the Supreme Court heard a challenge to Minnesota law that made it criminal disorderly conduct to “place on private property a symbol, object, appellation, character, or graffiti” that the person knew or had reasonable grounds to know “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender.” The challenge arose after two men were convicted under this law for burning a cross on a black family’s lawn. The Court held that the law was unconstitutional as both a content-based restriction on speech and as a viewpoint-based restriction. The Court also noted that there were other "content neutral" laws on which the men could be prosecuted.
Because the law did not prohibit fighting words in general, but rather prohibited only fighting words that “arouse anger on the basis of race, color, creed, religion, or gender,” the law was regulating racist and sexist fighting words but not regulating, for example, homophobic or politically focused fighting words. The government is not permitted to make this kind of distinction regarding the content of someone’s speech. And, because the law restricts only speech that arouses anger on the basis of the listed categories, it could result in viewpoint discrimination: a speaker who used a racial epithet would be held in violation of the law, while someone who argued “against racial bigotry” would not be. The law effectively assigns criminal penalties to the expression of certain points of view, and the Court struck it down as a violation of the First Amendment.
In Brandenburg, a man was convicted in violation of an Ohio law that created criminal and civil penalties for advocating crime, violence, sabotage, or terrorism as a means for political or industrial reform, and for voluntarily assembling with people who gathered to teach or advocate doctrines of criminal syndicalism. The Supreme Court struck down this law, noting that “constitutional guarantees of free speech and free press do not permit a state to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
This case overruled a prior decision in the Whitney v. California, 274 U.S. 357 (1927), which had held that advocacy alone was enough to cause danger, and that states could therefore pass laws forbidding it. The implication of Brandenburg for artists who post their work on the Internet is that they have much freedom to express themselves under the First Amendment. As long as the work cannot be construed as directing illegal action in the near future and as likely to actually bring about that action, then states cannot regulate it or punish the artist who created it.
This is one of the few recent cases where a prohibition against speech from a certain viewpoint was upheld. In that case, the American Coalition of Life Activists posted a sign with the name of twelve doctors who performed abortions. They distributed other doctors’ names and home addresses. Sometime after these posters started circulating, three doctors who performed abortions were assassinated. Someone related to the coalition eventually created a website that listed the names of abortion doctors. On his list, the website creator grayed out the names of doctors who had been wounded and struck through the names of people who had been murdered.
The Ninth Circuit Court of Appeals determined that, in this context, the posters constituted a serious threat of harm, one that had lead doctors who performed abortions to wear bulletproof vests and accept the protection of U.S. Marshals. The Court held that even though the posters did not appear to be threatening, in context they presented a reasonably foreseeable threat of an intent to commit bodily harm. This constituted a “true threat,” and the possibility of harm was great enough that the state could permissibly suppress the speech.
This case demonstrates how certain instances of speech can be construed as a serious threat, even if the speech itself does not contain direct threats. If speech targets particular individuals for attention and is associated with other violent or threatening conduct toward those people, it may not be protected under the First Amendment.
At issue in Chaplinsky was a statute that prohibited calling others by “offensive or derisive names” in public places. Chaplinsky, a Jehovah’s Witness who was passing out pamphlets and speaking out against organized religion, was arrested after his activity drew a large crowd. On his way to jail, he came across the town mayor, who had warned Chaplinsky against causing commotion within the town. Chaplinsky attacked him verbally, shouting “You are a God-damned racketeer" and "a damned Fascist," and was convicted under the statute.
The Supreme Court held that this statute’s restriction on speech was permissible because it was a prohibition on fighting words in general, and not on speech from a specific point of view. “Fighting words” are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” A prohibition on fighting words, the court reasoned, was acceptable under the First Amendment because “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.”
The holding of Chaplinsky has narrowed somewhat over the years; for example, the 1969 case Street v. New York held that speech that is merely offensive cannot be regulated as fighting words. Still, the ability of the government to prohibit fighting words persists, and it is possible that such regulation might extend to the Internet. But one of the key characteristics of fighting words is their tendency to bring about an immediate fight or breach of the peace, and because Internet-based communication tends to happen across distance and over time, it is much less likely than face-to-face communication to satisfy this immediacy requirement.
In this case, French plaintiffs challenged American-based Yahoo! because people had offered to sell Nazi items on Yahoo's international and American sites. The sale of such products is illegal in France, and the French non-government organization Ligue Contre le Racisme et l’Antisémitisme (LICRA) demanded that Yahoo! stop selling the products anywhere that a person in France could access them. Yahoo! refused, and LICRA asserted jurisdiction over the corporation because of its contacts with France. LICRA received a judgment in its favor in the French court; Yahoo! challenged the judgment in U.S. court, arguing that the judgment was unenforceable on First-Amendment grounds. Though the U.S. court agreed with Yahoo!, finding that an order to enforce the judgment would violate the U.S. Constitution, the Ninth Circuit Court of Appeals eventually decided that, while the District Court had jurisdiction over the French parties in this case, the issue of enforceability of the French court’s judgment was not ripe for adjudication, because nothing indicated that Yahoo! was in violation of the order to the extent that any party would seek to enforce it. Yahoo! eventually removed the offending materials from its site and no longer permits the sale of such material.
This case illustrates how U.S. free speech protections, which would not have required Yahoo to remove the content, can come under attack in other countries. As Internet use continues to grow, this type of international conflict will arise more and more frequently.