This is part two of an examination of the limits of freedom of expression established by key Supreme Court decisions. Please read the first part here.
Over two decades after the Schenk decision, the U.S. Supreme Court ruled on a case relating to “fighting words” – words spoken at close range in intent to provoke physical action. In November 1941, a man by the name of Walter Chaplinsky was arrested for calling a Rochester, New Hampshire police officer a “damned fascist” and a racketeer on a public street in close proximity to the officer. While he was fined and not imprisoned, Chaplinsky appealed the ruling on the grounds that his rights to freedom of speech were violated. In Chaplinsky v. New Hampshire (1942) the Supreme Court reached a unanimous decision upholding the New Hampshire law. The Supreme Court established a precedent that speech, “likely to provoke the average person to retaliation, and thereby cause a breach of peace” is not constitutionally protected. While freedom of speech is hallmark to any democracy, the Supreme Court has determined that fighting words do not need to be constitutionally protected because they can potentially bring disorder to society.
In the turbulent 1960s, several important cases involving the freedom of expression were appealed and argued before the U.S. Supreme Court. In New York Times v. Sullivan (1964), an elected police commissioner sued the New York Times for an advertisement in their paper that was critical of police in Montgomery, Alabama. The advertisement made a series of statements about police treatment of civil rights leaders, some of which were not factual. Despite the fact that he was never mentioned by name, L.B. Sullivan felt the article libeled him because to be critical of the police was to, in turn, be critical of the commissioner. A case without precedent, Sullivan’s lawsuit against the New York Times traveled all the way to the Supreme Court.
Sullivan’s lawsuit was symbolic of something much greater at the time. “Many Southerners bitterly resented northern efforts to promote civil rights of African American in the South. To many in Alabama, the New York Times symbolized all that they disliked.” Rather than have the case tried in New York (as that is where the New York Times was based), Sullivan had the case tried in the Alabama Supreme Court. Sullivan was awarded a sum of a half million dollars based on Alabama’s libel law. Disagreeing with the ruling, the New York Times appealed the ruling to the U.S. Supreme Court – an unprecedented action at that time because state law had always handled libel cases.
Unlike the Alabama State Supreme Court, the U.S. Supreme Court ruled 9-0 in the New York Time’s favor. In the eyes of the justices, the factual errors that were made in the advertisement were of “mere negligence and not actual malice.” Their ruling set two precedents. First, the Supreme Court set a precedent that in order to be guilty of libeling public figures, there had to be a deliberate attempt to publish falsehoods or show a “reckless” disregard for the truth. Second, overturning the Alabama Supreme Court, the U.S. Supreme Court Justices applied the First and Fourteenth Amendments (capitalize?) to determine that states cannot award damages to a public official without proving “actual malice.”