There were at least two distinct problems faced by Georgia Gwinnett College student Chike Uzuegbunam, although he did everything he could to address the first, the Orwellian requirement to obtain permission to speak freely at a specific, tiny, spot on campus where free speech was allowed.
Mr. Uzuegbunam had tried to comply with the rules at his school, Georgia Gwinnett College, a public institution in Lawrenceville, Ga., that sprawls over 260 acres. The college had designated two small patches of concrete as “free speech expression areas.”
The free speech zones were available, moreover, only on weekdays and only for four hours on most days and two on Fridays. Students could reserve them once every 30 days.
And yet, he jumped through the necessary hoops and complied, although none of these requirements should pass constitutional muster.
When Mr. Uzuegbunam stepped onto his stool in August 2016, he was in one of the free speech zones. Indeed, he had reserved the space, submitting a free speech area request form three business days before, as required by the college’s elaborate freedom of expression policy.
Fighting these rules, the very existence of “free speech zones” as opposed to the entirety of the campus of a public institution being a free speech zone, would be a worthy enough fight. But that was the easy part, as it turned out.
A campus police officer told him that he could distribute literature and have one-on-one conversations. But public speaking in a free speech zone, the officer said, amounted to disorderly conduct.
Mr. Uzuegbunam sued, saying the college’s policies violated his First Amendment rights. In a brief seeking to dismiss the case, Christopher M. Carr, the state’s attorney general, made a remarkable argument.
The college subsequently dropped its limitations in the face of litigation, revised its policies to moot the issue raised and argued by its counsel for lack of anything better to argue in support of its anti-speech position.
“Plaintiff’s open-air speaking arguably rose to the level of ‘fighting words,’” Mr. Carr wrote, referring to one of the few categories of speech that are entitled to no protection under the First Amendment. “Plaintiff used contentious religious language that, when directed to a crowd, has a tendency to incite hostility.”
Wrapped up in the astounding misapprehension of the dubious “fighting words” exception to the First Amendment, thrown around with reckless abandon by people whose grasp of law extends to two-word slogans, is the belief that it covers any speech that makes people angry. After all, if a words upsets you, it makes you want to fight. And if it makes you want to fight, then it must be a fighting word, right?
In 1942 the Supreme Court held that the government could prohibit “fighting words” — “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” The Supreme Court has been retreating from that pronouncement ever since. If the “fighting words” doctrine survives — that’s in serious doubt — it’s limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The “which by their very utterance inflict injury” language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.
At the time of Chaplinsky, ironically a case about a Jehovah’s Witness calling a cop “a damned fascist” in the midst of World War II, the Supreme Court concluded that he asked for it. After that, the Court backed away, slowly at first, until it held in 1972, in Gooding v. Wilson, that “vulgar and offensive speech” was protected. The “fighting words” exception is legally still extant, but an historical anomaly, gutted as far as the law was concerned.
Even though Georgia Gwinnett College revised its policies, backed off its argument and now claims the case is moot, there is a question whether it should still be heard by the Supreme Court. There is, on the one hand, a technical issue of standing, and that a case which sought a ruling on unconstitutional policies is no longer a case and controversy once the policies have been rescinded. Of course, the day the Supreme Court rejects the case, they could change the policies back and beat the system, and other colleges can adopt the same policies based on the argument that they’re not unconstitutional because the Supreme Court never said so.
But beneath the surface remains a question, raised not by the legal precedent so much but by experience. As the belief that “words are violence” persists in the minds of many on campus, they react with violence. Remember when UC Santa Barbara professor of feminist studies Mireille Miller-Young stole an anti-abortion poster from students on campus? Or when students at SUNY Binghamton went beyond disagreeing with conservative students?
Whether the legal concept of fighting words still has viability, there are “breaches of the peace” resulting from the expression of speech and ideas that students find unacceptable. What would have happened at SUNY had one of the conservative students tried to physically prevent the physical conduct of the students removing their table, destroying their flyers, getting into their faces screaming at them?
As intolerance becomes not only a norm on campus, but a norm that manfests itself in physical action beyond the problematic “heckler’s veto” by shouting out speakers who might say a “fighting word,” does the concept of “fighting words” become a real problem again that needs to be addressed by the Supreme Court, not because the First Amendment demands it but because students are ready and willing to fight, to engage in violence and destruction, to silence those who exercise speech they reject? As they believe “words are violence,” they react to words and ideas with actual violence. Where does the law say it should end?