In Deliverance of the bird man, a reader wrote in to ask about an incident in which his group ride was buzzed, and in response, the ride leader flipped the offending driver “the bird.”
As you may recall, this immediately led to an altercation between the “bird man” and the “enraged and rather large passenger.” In that column, I wrote that “the bird” is not constitutionally protected speech, and may even be a provocation to fight. In response, I received the following letter.
Interesting discussion of the “bird,” although lacking in brevity and accuracy. I take issue with your conclusion that the “bird” is unprotected speech because of being indecent. I believe that issue was resolved to the contrary long ago in Cohen v. California, which would appear to be directly analogous.
That may leave open whether the gesture could be found to be the equivalent of “fighting words,” but typically it has not been found to be, especially in the absence of other conduct.
In support of his argument that the bird is protected speech, K.F. included reference to several cases addressing the issue. The erosion of our civil liberties is an issue of grave concern to me, so in my last column, I promised to take another look at whether “the bird” is constitutionally protected speech.
At issue are two seminal cases; the first is a 1942 case, Chaplinsky v. New Hampshire, in which the Supreme Court carved out a “fighting words” exception to the First Amendment’s protection of speech. Walter Chaplinsky was a Jehovah’s Witness who aroused some hostility from “members of the local citizenry” while distributing Jehovah’s Witness literature, and denouncing all religions as “a racket,” on the streets of Rochester, New Hampshire. After being twice warned by the City Marshal that the crowd was “getting restless,” Chaplinsky was reported to have replied “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.”
Before his arrest, Chaplinsky testified, he had asked the City Marshall to arrest those responsible for the disturbance, and that the Marshall had refused, instead cursing at Chaplinsky and telling him to “come along.” Chaplinsky admitted that in response to the Marshall, “he said the words charged in the complaint with the exception of the name of the Deity.” Chaplinsky’s reply got him arrested, tried, and convicted on a charge of breaching the peace. Chaplinsky appealed his conviction all the way to the Supreme Court—and he lost there, too, as the Court carved out the “fighting words” exception to the First Amendment’s protection of speech:
There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. 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. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality. Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.
The other seminal case, which K.F. referred to, and which several subsequent cases hang their hats on, is a 1971 case, Cohen v. California,. In 1968, Paul Cohen was observed in the hallway of the Los Angeles County Municipal Court wearing a jacket inscribed with the words “Fuck the Draft.” When he entered a courtroom, he was careful to remove his jacket and fold it over his arm. Cohen’s attention to courtroom decorum wasn’t good enough for a police officer, however, who
sent the presiding judge a note suggesting that Cohen should be held in contempt of court. The judge declined to do so, and Cohen was arrested by the officer only after he emerged from the courtoom.
Cohen was charged and convicted with a breach of the peace, and was sentenced to 30 days imprisonment. Like Chaplinsky before him, he appealed his case all the way to the Supreme Court. In a 5-4 decision, the majority of the Court recognized that Cohen’s conviction rested “squarely upon his exercise of the ‘freedom of speech’ protected from arbitrary governmental interference by the Constitution,” and therefore, could be justified,
if at all, only as a valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition on the substantive message it conveys. This does not end the inquiry, of course, for the First and Fourteenth Amendments have never been thought to give absolute protection to every individual to speak whenever or wherever he pleases or to use any form of address in any circumstances that he chooses. In this vein, too, however, we think it important to note that several issues typically associated with such problems are not presented here.
In other words, while the right to freedom of speech is not absolute, the types of issues that justify governmental interference with the right of free speech were not present in Cohen’s case. For example, the Court observed that the case before it was not an obscenity case:
Whatever else may be necessary to give rise to the States’ broader power to prohibit obscene expression, such expression must be, in some significant way, erotic. It cannot be plausibly maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.
Nor did this case fall under Chaplinsky’s “fighting words” exception:
This Court has held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called “fighting words,” those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance, it was clearly not “directed to the person of the hearer.” No individual actually or likely to be present could reasonably have regarded the words on [Cohen’s] jacket as a direct personal insult. Nor do we have here an instance of the exercise of the State’s police power to prevent a speaker from intentionally provoking a given group to hostile reaction. There is, as noted above, no showing that anyone who saw Cohen was in fact violently aroused or that appellant intended such a result.
Finally, the Court noted that Cohen was not invading the privacy of those who might be offended by his speech—they “could effectively avoid further bombardment of their sensibilities simply by averting their eyes.”
Having dispatched each of these circumstances that would justify government regulation of Cohen’s speech, the Court turned its attention to the question before it:
whether California can excise, as “offensive conduct,” one particular scurrilous epithet from the public discourse, either upon the theory of the court below that its use is inherently likely to cause violent reaction or upon a more general assertion that the States, acting as guardians of public morality, may properly remove this offensive word from the public vocabulary.
As with the other issues raised, the Court dispatched this question with similar ease:
We have been shown no evidence that substantial numbers of citizens are standing ready to strike out physically at whoever may assault their sensibilities with execrations like that uttered by Cohen. There may be some persons with such lawless and violent proclivities, but that is an insufficient base upon which to erect, consistently with constitutional values, a governmental power to force persons who wish to ventilate their dissident views into avoiding particular forms of expression. The argument amounts to little more than the self-defeating proposition that to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may more appropriately effectuate that censorship themselves.
Finally, the Court spoke to the value of speech free of government restraint:
The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests…Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech has little or no regard for that emotive function which practically speaking, may often be the more important element of the overall message sought to be communicated.
And with that, Cohen was free.
Now, does this mean that you have a constitutional right to flip the bird? Next week, we’ll see what subsequent courts have had to say about that. Until then, here are the relevant points we will want to keep in mind from Chaplinsky and Cohen:
You have a right to free speech, but that right is not absolute. However, while government restrictions that address the “time, place, and manner” of speech are permissible, government may not regulate the content of speech. Among the speech restrictions that are permissible, government may regulate speech that is lewd, obscene, profane, libelous, or insulting or “fighting” words. For obscenity, the relevant question in assessing whether the speech is protected is whether the lewd or obscene speech is intended in some significant way to be erotic. For insulting or “fighting words,” the relevant questions in assessing whether the speech is protected are whether the words are “directed to the person of the hearer,” whether the words provoked a violent reaction, and whether the person uttering the words intended to provoke a violent reaction.
These two cases—Chaplinsky and Cohen —are the seminal cases underlying the question of whether “the bird” is protected speech. Now that we’ve got a basic understanding of these two cases, we can take another look—next week—at whether “the bird” is protected speech. And while we’re on that subject, I’ll be taking a second look at whether flipping the bird can really be considered an act of provocation.
Speaking of offensive speech in a different vein, I received the following letter from West Virginia native D.H., who took exception to the unfair caricatures of his beloved home state in the last two columns…
Thanks from a bone-fed local hick
Glad to see the “defense” of WVa by Bob, in which the thug was deemed to be a local. Why hot damn! He done could not have been some feller who weren’t borned in West By God Virginny! He had to be a derned native-born “bona-fide local” hick. Unlike WVU boy “A.R.” An who would have reckoned ifn ya give someone the finger that he’d take offense? Why, that wouldn’t never happen in Chicago for eggsample.
It jest goes to show ya, that if you are someplace where some idjiot nearly kills ya, it is an indikation of ever derned person (bone-fed local) in the state or country.
I be a former local hick who done lived pert darned near 20 miles outside Morgantown in the uncivilized area. But I is gaddammed pleased to here that good ol’ A.R. has done crowned most of us as “civilized.” Now ifn’ we can only git shoes why we’d be darned near human. Gotta admitt that I getted a bit confused about the “bona-fide local” who did the dirty deed on one hand, and “most West Virginia drivers give cyclists a wider berth than in many other parts of the country.” I reckon these here sensitive fellers ain’t bone-fed locals like our thug.
(By the way, wasn’t Deliverance filmed in some southern state with swamps and airboats and not a mid-Atlantic state full of hills and forests? Ya’ll folks never done mind about what I jus’ writted, what would a dumb uncivilized hick know about geography and picture films? Or cycling?)
- There done be alot of idjiots in cars in Tokyo too. They are all those stupid bone-fed locals though. -D.H.
Well said, D.H….And yes, Deliverance was filmed in the South, although by your description, I think those swamps and airboats are in Florida, and not Georgia and South Carolina, where Deliverance was filmed. See? Even bone-fed Wisconsin boys know a thing or two about geography, picture films, and cycling.
On a final note, as I announced in the last column, I am planning a series of speaking engagements across the country in conjunction with the publication of my new book, “Bicycling & The Law.” If you would like me to appear to speak at your event or shop, or to your club or group, please drop me a line at firstname.lastname@example.org. The booking information will also be included in “the fine print” at the end of this and every column. I’m looking forward to meeting as many of my readers as possible; hopefully, I’ll be speaking at your event soon, whether in the swamps of the deep south, or in the hills and forests of the mid-Atlantic.
Next week, we return to the question: Is “the bird” protected speech?
Don’t touch that mouse…
(Research and drafting provided by Rick Bernardi-law student-Lewis and Clark)
This article, Them There’s fightin’ words, boy, was originally published on VeloNews on October 4, 2007.
Now read the fine print:
Bob Mionske is a former competitive cyclist who represented the U.S. at the 1988 Olympic games (where he finished fourth in the road race), the 1992 Olympics, as well as winning the 1990 national championship road race.
After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc). Mionske is also the author of Bicycling and the Law, designed to be the primary resource for cyclists to consult when faced with a legal question. It provides readers with the knowledge to avoid many legal problems in the first place, and informs them of their rights, their responsibilities, and what steps they can take if they do encounter a legal problem. If you have a cycling-related legal question, please send it to email@example.comBob will answer as many of these questions privately as he can. He will also select a few questions each week to answer in this column. General bicycle-accident advice can be found at bicyclelaw2.wpengine.com.
The information provided in the “Legally Speaking” column is not legal advice. The information provided on this public web site is provided solely for the general interest of the visitors to this web site. The information contained in the column applies to general principles of American jurisprudence and may not reflect current legal developments or statutory changes in the various jurisdictions and therefore should not be relied upon or interpreted as legal advice. Understand that reading the information contained in this column does not mean you have established an attorney-client relationship with attorney Bob Mionske. Readers of this column should not act upon any information contained in the web site without first seeking the advice of legal counsel.