VERBAL ASSAULTS AND FREEDOM OF SPEECH
This research paper discusses the zone of constitutional protection afforded verbal assaults under the First Amendment.
Such assaults, particularly those containing racial slurs or insults, should not be insulated from legal prohibition as free speech because their toleration encourages violation of equal protection under the Fourteenth Amendment of racial minorities and poisons the dialogue and relations among races in a manner detrimental to the healthy functioning of democracy in a pluralistic society.
Demise of the Fighting Words Doctrine
The First Amendment of the Constitution provides, in part: "Congress shall make no law . . . abridging the freedom of speech, or of the press." According to conservative critic of the Court and strict constructionist Alexander Meiklejohn, the founding fathers intended that "the guarantee given by the First Amendment . . . is assured only to speech which bears . . . upon . . . matters of public interest" (Lockhart et al. 702-703). The guarantees of the First Amendment have been held to apply to all forms of state action, including actions of state and local governments and entities financed or subsidized by government, such as universities.
In a number of rulings in cases decided earlier in the 20th century, the Supreme Court recognized that freedom of speech was not an absolute right, but rather was limited by other laws such as those dealing with criminal and civil assault and trespass, libel and obscenity. In Schenk v. United States, 249 U.S. 47 (1919), in which the Court upheld the conviction of a draft resister who had mailed leaflets urging others not to enlist, Justice Oliver Wendell Holmes, using the simile that no man had the right to shout fire in a crowded theater, enunciated his clear and present danger test under which free speech could be curtailed under circumstances in which public order was in imminent peril. In Whitney...