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May|June 2002
Court Potato By Dashka Slater
God Save the Wig By Asha Rangappa
Judge Lee's County By Bill Rankin
"Fighting Words" By Jeffrey Rosen
Gun by Gun By Glenn Harlan Reynolds

"Fighting Words"

Where they came from, how they got pummeled by the First Amendment, and why the fight has gone out of them.

By Jeffrey Rosen

sami al-arian used to be a professor of computer engineering at the University of South Florida, with his tenure unquestioned. But in December 2001 the university told Al-Arian it planned to fire him, in the wake of an appearance he made on the T.V. talk show "The O'Reilly Factor." In a September broadcast, the host, Bill O'Reilly, cited an old speech in which Al-Arian had proclaimed "death to Israel." (In the 1980s, Al-Arian had founded the Islamic Committee for Palestine, which a PBS documentary called "the primary support group in the United States for Islamic jihad.") O'Reilly added to Al-Arian, "If I was the CIA, I'd follow you wherever you went." After the show, Al-Arian received death threats, and USF donors threatened to withdraw their support from the university. When the USF president announced Al-Arian's firing, she explained that she viewed Al-Arian's speech as "purposeful, willful, almost calculated behavior that ends up disrupting this institution"—in other words, "fighting words."

Sixty years ago, in Chaplinsky v. New Hampshire, the Supreme Court upheld for the first and only time a conviction for fighting words and made that doctrine a rare exception to the First Amendment's protection of free speech. Walter Chaplinsky, a member of the Jehovah's Witnesses, called a city marshal a "damned Fascist" and "a God damned racketeer." He was convicted of violating a New Hampshire law that declared, "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place." In affirming the state court, the Supreme Court announced that the First Amendment does not protect "insulting or 'fighting' words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace."

The Court has never upheld a conviction for fighting words that don't involve face-to-face encounters, such as those that involve ridicule or scorn about an ideology. So the firing of Al-Arian may not and should not survive the legal challenge he has vowed to pursue. But the broader question is whether the doctrine of fighting words has any relevance today. During the past few decades, it has been criticized for being out of sync in a multicultural age: The doctrine's definition of fighting words is said not to take into account the unique perspective of women, racial minorities, and gays and lesbians, some of whom may be less likely to respond to insults with physical violence. But a brief excursion into the historical roots of the fighting-words doctrine provides even stronger reasons for abandoning it. Legal bans on fighting words grew out of 19th-century efforts to discourage the practice of dueling, and they evolved from a Southern culture of honor and hierarchy that's very different from modern American democracy.

A highly ritualized code of honor led American gentlemen in the 19th century to fight duels, to prove their social status and worthiness for leadership. As Kenneth S. Greenberg describes it in Honor & Slavery, dueling depended on a strong consensus about the social pecking order. If you were insulted by a social equal, you redeemed your honor by challenging him to a duel. If you wanted to insult a social inferior, you displayed your contempt by bludgeoning him with a cane. In a culture based on honor, there was broad agreement about what kinds of insults could be avenged only by demanding satisfaction in a duel.

Disrespect for someone's public face was a serious insult that demanded a response. Nose-pulling, for example, was known as a "Lieutenant Randolph outrage" because of a well-known incident in 1833 in which Robert Beverly Randolph tried to pull the nose of President Andrew Jackson during a presidential visit to Randolph's hometown, Fredericksburg, Virginia. Jackson had dismissed Lieutenant Randolph from the Navy for being in debt. To avenge his honor, Randolph approached Jackson, took off a glove, and tried to pull the President's nose. The 66-year-old Jackson reacted violently: He pushed Randolph away, stood up, and demanded revenge. "Let no man interfere between me and this personal insult," he said.

As Greenberg recounts, when Randolph was later apprehended for the assault, Jackson rejected the interference of the court in what he regarded as an affair of honor. He asked President Martin Van Buren to pardon Randolph, citing the wishes of his mother, who had advised him to "indict no man for assault and battery or sue him for slander." In an honor culture, a personal attack on the body could be countered only by an attack in kind.

But there was no need to touch someone you wanted to insult—you could utter fighting words instead. In her recent book, Affairs of Honor: National Politics in the New Republic, the Yale historian Joanne B. Freeman notes that "Coward, liar, rascal, scoundrel, and puppy all demanded an immediate challenge, for they struck at the core elements of manliness and gentility." (A puppy, Freeman recounts, was "a fop or coxcomb; corresponding to the French poupée ... a woman's plaything or pet.") She continues, "Any man who uttered them in a dispute was declaring his intention to engage in an affair of honor."

Some men may have dueled to kill an adversary, but most gentlemen fought duels to demonstrate that they did not fear death at the hands of their social equals. "Each man shot a bullet and gave his adversary a chance to demonstrate that he did not fear death; honor was more important than life," writes Greenberg. "And each man allowed his adversary to shoot at him, and therefore paid him the compliment of acknowledging his social equality."

Laws that made dueling illegal in the 19th century failed to stamp out the practice. Lawrence Lessig, who now teaches at Stanford Law School, is a founder of the New Chicago School of social norms. In an interview with me, published in The New Yorker, he observed, "The problem was that the people who engaged in duels thought of themselves as members of an elite; and if a gentleman said, 'I can't duel because I'll go to jail,' his challenger would accuse him of being a coward." So the states in the early 19th century tried an indirect approach: They passed a series of laws that attempted to break the connection between dueling and honor by prohibiting people who dueled from holding public office. "Now if the person wanted to decline the duel, he could appeal to the idea that he had a higher duty to serve the state by holding public office," Lessig notes. "He might still be a coward, but the state had given him a good reason to back out"—a reason consistent with honor.

Despite their creative efforts to bar dueling indirectly, these 19th-century laws may not have been effective. In a recent essay, "The End of the Affair? Anti-Dueling Laws and Social Norms in Antebellum America," C.A. Harwell Wells argues that dueling didn't end in the South until after the Civil War, when the defeat of Lee's army meant the end of the hierarchical society on which dueling relied. Nevertheless—and this history doesn't seem to have been told—between the end of the Civil War and the beginning of World War II, the anti-dueling laws evolved into the fighting-words statute at issue in Chaplinsky.

That statute, a New Hampshire court held in 1895, applied even when the offensive words were true. The court noted that the purpose of the law was to preserve public peace and that the "direct tendency of such conduct, like that of libel ... is to provoke the person against whom it is directed, to acts of violence." In this sense, the New Hampshire fighting-words law was similar to Virginia's Anti-Dueling Act, passed in 1810, which prohibited "all words which from their usual construction and common acceptation are considered as insults, and lead to violence and breach of the peace," whether or not the words were true. In "Enforcing Civility and Respect: Three Societies," James Q. Whitman notes that in Mississippi, Virginia, and West Virginia, the three Southern states that still have anti-dueling statutes on the books, the statutes have evolved through judicial interpretation so that they now have the same meaning as the "fighting-words" doctrine defined by the Supreme Court.

From the end of the Civil War until World War II, then, American society was transformed—but this doctrine was essentially unchanged. The foundation of the fighting-words doctrine had collapsed long before the Supreme Court enshrined it as marginal constitutional law in 1942. The Chaplinsky Court defined fighting words as those that "men of common intelligence would understand would be words likely to cause an average addressee to fight." In a culture based on honor, there was a consensus about the meaning and impact of fighting words. It was perfectly obvious that being called a liar would have provoked a 19th-century gentleman to insist on fighting a duel. But by the 1940s, no such consensus existed.

Despite the Court's assertions to the contrary, it was hardly obvious even in the middle of World War II that being called a "damned Fascist" would have provoked an average man to a fistfight. As Whitman observes, the epithet "Fascist" belongs within a special category of political insults that were common in France and Germany and had more to do with regulating political debate than with managing civility. In any event, the shattered consensus about what sorts of insults were serious enough to justify a violent response became even more diffuse after the 1960s, when American individualism flourished and the social hierarchy required to support an honor culture continued to break apart.

Aware of the archaic quality of the fighting-words doctrine, several modern commentators have proposed abandoning its focus on imminent violence and resurrecting its prohibition on words that "by their very utterance inflict injury." The inherent indignity of certain racist and sexist epithets, they suggest, is enough to exclude them from protection by the First Amendment. But the idea that certain words are inherently wounding is as rooted in 19th-century honor culture as is the idea that certain words are bound to provoke violence. "The interest in honor," as Whitman writes, "is an interest in making sure that other people show us respect" not only in public but in private as well. The idea that certain words inflict injury by their very utterance—even if no one else hears them—can't be resurrected in 21st-century America, because in America today people of lower status aren't required to show respect to those of higher status.

Some observers argue that status derives from membership in a group rather than individual identity. They believe, for example, that in the workplace any speech about sex tends to subordinate women and inherently inflicts injury. Others strongly disagree. But there are no longer any words like "coward" and "liar" that can be said to inflict injury by their very utterance. In America today, no words can make us lesser, because in the eyes of the law and in the aspirations of society, we are equal by virtue of being American. Those who claim that they are oppressed by their membership in a downtrodden class may be able to muster some empirical evidence, but they misunderstand an inevitable tendency of American democracy: It allows everyone greater and greater individualism and equality.

After World War II, as the legal underpinnings of the fighting-words doctrine collapsed, the phrase took on a life of its own in American language outside its rare use in the law. It pops up repeatedly, and ironically, in sports talk: When a Red Sox fan insults the Yankees, for example, a Yankees fan might respond, "Them's fighting words"—and then buy his tormenter a beer. And there has been a rash of fighting-words references since September 11; newspaper headlines and T.V. news anchors repeatedly refer to the speeches of George W. Bush or Osama bin Laden as "fighting words." But at this point, we are so far from the original meaning of the term in an honor culture that it includes any phrase that might be considered offensive. In his new book, Nigger: The Strange Career of a Troublesome Word, Randall Kennedy advises that the most egregious epithet in the American language should be treated as "mere words" rather than an assault warranting legal action.

Which brings us back to Professor Al-Arian. He has denied any connection between terrorism and the Islamic Committee for Palestine, though its conference in 1991 featured Abdul Aziz Odeh, the spiritual leader of the Islamic jihad. Nevertheless, leaders of the USF faculty were correct when they voted against a motion that would have endorsed his firing. No one can say that the words "death to Israel" recorded on a video years ago are likely to provoke an average person to fight today. Because of their roots in dueling culture, fighting words must be uttered face to face—and even a face-to-camera insult like the one Al-Arian expressed is more likely to provoke a call to the FBI than a left hook. As for the idea that an insult to Israel could inflict injury by its very utterance, the idea of a libel to a group is more compatible with the values of hierarchical societies, such as the 19th-century South, than with those of an egalitarian democracy like modern America. It's tempting to make exceptions to basic liberties in wartime, but courts—and citizens—should resist the temptation. Isn't a free country what we're fighting for?

Jeffrey Rosen is an associate professor at George Washington University Law School and legal affairs editor of The New Republic.

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