In 1942 the Supreme Court, in the Chaplinksy vs. New Hampshire ruling, upheld the notion of a “fighting words” exemption to the First Amendment. “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,” wrote the court in that ruling. “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.”
That’s the standard the Metropolitan Transit Authority has invoked in New York City in the wake of pro-Israel ads that have inspired protests and vandalism.
The Metropolitan Transportation Authority approved new guidelines for advertisements on Thursday, prohibiting those that it “reasonably foresees would imminently incite or provoke violence or other immediate breach of the peace.”
The 8-to-0 vote by the authority’s board came three days after pro-Israel ads characterizing Islamist opponents of the Jewish state as being “savage” began appearing in subway stations, setting off vandalism, denunciations of the authority and calls for the ads’ removal…
“We’ve gotten to a point where we needed to take action today,” Joseph J. Lhota, the authority’s chairman, said at a news conference on Thursday.
The MTA had previously tried to deny the ads, and a court ruled that they were protected free speech. By carefully wording their new policy to reflect legal precedent for a “fighting words” objection, the MTA probably has a better case.
Which doesn’t make the MTA’s decision to try and censor provocative ads any better.
The problem with the “fighting words” precedent is that it hinges freedom of speech on public reaction. You have free speech unless something you say creates outrage among the public at large, in which case the government can invoke the “fighting words” standard and silence you.
Which is exactly what the Islamists are doing. They want to silence critics of their religion. So they murder and riot and vandalize citing speech critical of their religion as justification.
The response from our government officials should be to condemn the intolerance of those who would turn to violence and other criminal behavior in response to free speech, but instead the response to these most recent examples of Muslim violence in the middle east, and the vandalism in New York, has been to try and silence the speakers.
President Obama demanded that all criticism of religion stop at the UN. In New York, the MTA wants to censor controversial ads.
The lesson for the enemies of free speech is that if they react to speech they want silenced with violence and rioting America’s leaders, instead of defending the speech, will look to silence it.
That’s a dangerous trend. Sadly, it’s one we’ve been on for some time. Laws outlawing “hate speech” and “bullying” have been written so broadly that, in some instances, merely saying something that makes somebody else wrong makes the speaker a criminal.
The freedom of speech wasn’t created to protect speech about the weather. The test of a society’s dedication to free speech lays in whether or not that society will protect the most controversial sorts of speech. And, increasingly, it seems America is unwilling to do that.