Free Speech and Disturbing the Peace

Key Questions:

·      Does the Westborough Baptist Church have a right to protest at LHS? Why or why not?

·      How does the law balance individual liberty (free speech) and public peace and safety?

·      What is hate speech?  When is it protected by the First Amendment?


When a person speaks publicly, two elements are interacting: the speaker and the audience.  Protection of a person’s speech by the First Amendment depends on how these elements interact in different situations.  There may be times when certain words may be protected and other times when the same words may not be protected because the surrounding situation has changed.  The authorities must analyze each situation and make a decision: Does the person speaking have the right to speak out about their opinions as protected by the First Amendment?  (see below)  Or, is what being said or done going to create a situation where public safety is at risk?


There are several laws and cases listed below in which the courts confronted situations where they were forced to find a balance between an individual’s freedom to share their opinions and the protection of general public safety. 


Restriction of free speech and in defense of public peace and safety: 


General Laws concerning public peace and safety:


Disorderly conduct:  “Likely to cause substantial harm or serious inconvenience, annoyance, or alarm.” Activity may be regulated only if it poses a threat to a person, property, or society.


Unlawful assembly:  The assembly of two or more persons who are behaving in a disorderly manner.


Rioting: The assembly of two or more persons who are behaving in a disorderly manner with the purpose of committing a crime, to coerce public officials, or if deadly weapons are used.


Failure to disperse:  When a law enforcement officer, or other official, orders the members of a group of three or more to disperse and someone refuses.


Disturbing the peace:  Any time public order or tranquility is unreasonably interrupted by an individual, disturbance of the peace has occurred.  This includes excessive noise in a residential area at night, attempting to cause or causing a noisy brawl, or indecent language and gestures




Massachusetts Laws concerning public peace and safety:


Chapter 269: Section 1. Dispensing and suppressing unlawful assembly; arresting persons If five or more persons, being armed with clubs or other dangerous weapons, or if ten or more persons, whether armed or not, are unlawfully, riotously or tumultuously assembled in a city or town, the mayor and each of the aldermen of such city, each of the selectmen of such town, every justice of the peace living in any such city or town, any member of the city, town, or state police and the sheriff of the county and his deputies shall go among the persons so assembled, or as near to them as may be with safety, and in the name of the commonwealth command all persons so assembled immediately and peaceably to disperse; and if they do not thereupon immediately and peaceably disperse, each of said magistrates and officers shall command the assistance of all persons there present in suppressing such riot or unlawful assembly and arresting such persons. For the purposes of this section, the University of Massachusetts at Amherst shall be considered to be a town.


Chapter 272: Section 53 Penalty for certain offenses: Common night walkers, common street walkers, both male and female, common railers and brawlers, persons who with offensive and disorderly acts or language accost or annoy persons of the opposite sex, lewd, wanton and lascivious persons in speech or behavior, idle and disorderly persons, disturbers of the peace, keepers of noisy and disorderly houses, and persons guilty of indecent exposure may be punished by imprisonment in a jail or house of correction for not more than six months, or by a fine of not more than two hundred dollars, or by both such fine and imprisonment.


Case law concerning public peace and safety:


Schenck v. United States (1919) During World War I, Schenck issued pamphlets to the public that discouraged draftees from going to fight in the war. 

COURT RULING: “The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger.” Even the most stringent protector of free speech would not protect a man falsely shouting “fire” in a crowded theater and causing a panic.  To do so would create a clear and present danger to everyone in the stampede to evacuate the theater.  Schenck’s speech is particularly dangerous to the United State because the country is at war. During wartime, utterances tolerable in peacetime can be punished.


Chaplinsky v. State of New Hampshire (1942): Chaplinsky called the city marshal a “God-d**d racketeer” and a “d**med fascist” in a public place.  He was arrested and convicted for violating a state law against breaches of the peace. 

COURT RULING: Words meant to inflict injury or tend to incite an immediate breach of the peace do not convey ideas and are not protected by the First Amendment. (“Fighting words”)  However, the courts rarely use the fighting words doctrine today.  Even offensive, provocative speech that makes its listeners very angry is generally protected and not considered to be fighting words.


Melton v. Young (1972): A student at a school with a history of racial violence refused to take off his jacket that has a confederate flag emblem.  He was told to leave school and not return until he had removed his jacket.

COURT RULING: “The principal had every right to anticipate that a tense racial situation continued to exist at the school and that repetition of the previous year’s disorders might reoccur if student use of the Confederate symbol was permitted to resume.”


Protection of free speech and in defense of individual liberty:


First Amendment:  Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.


Masses Publishing v. Patten (1917): The postmaster general refused to distribute a revolutionary journal that attacked capitalism and criticized the draft of men into World War I.

COURT RULING: The postmaster general must distribute the journal.  The government may prosecute words that are “triggers to action” but not “keys of persuasion.”


      Terminiello v. Chicago (1949)

Father Arthur Terminiello delivered a speech in which he criticized various political and racial groups and viciously condemned the protesting crowd (of about 1,500 people) that had gathered outside the auditorium. Policemen assigned to the event were unable to prevent several disturbances by the "angry and turbulent" crowd. The police arrested Terminiello for "breach of the peace." He was then tried and convicted for his central role in inciting a riot.

COURT RULING: The Court held that the "breach of the peace" ordinance unconstitutionally infringed upon the freedom of speech. Noting that "[t]he vitality of civil and political institutions in our society depends on free discussion," the Court held that speech could be restricted only in the event that it was "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Justice Douglas wrote, "a function of free speech under our system is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger."


Brandenburg v. Ohio (1968):  Brandenburg, a leader of the KKK, made a speech at a Klan rally and was later convicted under an Ohio criminal law that made it illegal to advocate “crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.”

COURT RULING: The Ohio law violated Brandenburg’s free speech rights

It made illegal the advocacy and teaching of doctrines while ignoring whether or not that advocacy and teaching would actually incite imminent lawless action.

*The free speech test came out of this case:

"The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is (1) directed to inciting or producing imminent lawless action and (2) is likely to incite or produce such action."


Tinker v. Des Moines Independent Community School District (1969): Students wore black armbands to school to protest the Vietnam War.  The principal resolved that all students wearing armbands must take them off or be expelled.

COURT RULING: The wearing of armbands, although symbolic speech, still falls under the protection of the First Amendment.  The school environments imply limitations on free expression, but here the principal lacked justification for imposing any such limits.  The principal “failed to show that the conduct would substantially interfere with appropriate school discipline.”


Hate Speech:


In recent years there has been an effort to punish those who express views motivated by bigotry and racism.  Those who support punishment argue that strong measures should be taken because of the special emotional and psychological impact hate speech has on its victims and its victims’ communities.  Furthermore, supporters of punishment argue that hate speech amounts to “fighting words” and are not protected by the First Amendment.  (See Chaplinsky above) Others argue that so-called speech codes designed to promote tolerance for minorities, women and gays, while well intentioned, are vague, difficult to enforce fairly, and involve government censorship (favoring certain viewpoints over others).  Some argue that the preferred approach to hateful speech is more speech: speech that rebuts bigotry and racism. 


Massachusetts Law concerning hate speech:

Certain criminal conduct is a hate crime when the conduct is motivated by bias against a person’s race, color, religion, national origin, sexual orientation or disability (M.G.L c. 265, s. 39).  In Massachusetts, there are both criminal and civil laws that address hate crimes. The Attorney General’s Office enforces the Massachusetts Civil Rights Act ("MCRA," M.G.L. c. 12, s. 11H-11J), which protects the rights of all residents and visitors to Massachusetts against threats and interference with their civil rights.  The MCRA protects the right to use public parks, attend schools, live peacefully, and enjoy other basic rights free from bias-motivated threats, intimidation, coercion and violence.  These rights are the heart of our safety, well-being and freedom.  The MCRA authorizes the Attorney General's Office to pursue legal action against those who deprive others of their civil rights through intimidation, threats, coercion or violence. 


Case law concerning hate speech:

Cohen v. California (1970) A 19-year-old department store worker expressed his opposition to the Vietnam War by wearing a jacket emblazoned with "F**K THE DRAFT. STOP THE WAR" The young man, Paul Cohen, was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." Cohen was found guilty and sentenced to 30 days in jail.

COURT RULING:  The Court reasoned that the expletive, while provocative, was not directed toward anyone. There was no evidence that people in substantial numbers would be provoked into some kind of physical action by the words on his jacket. Harlan recognized that "one man's vulgarity is another's lyric." In doing so, the Court protected two elements of speech: the emotive (the expression of emotion) and the cognitive (the expression of ideas).


Skokie v. Nazis (1977): The Chicago-based National Socialist Party of America (an offshoot of George Lincoln Rockwell's American Nazi Party), led by Frank Collin, requested a permit for a demonstration on the steps of the village hall of Skokie.  Skokie was a town where several Jews and Holocaust survivors had settled.  Frightened and outraged, townspeople were unwilling to permit Nazi uniforms on the streets of Skokie. They persuaded town officials to seek an injunction prohibiting the Nazi presence and to enact ordinances that withdrew protection from speech that incited hatred based on race, national origin, or religion.

COURT RULING: On February 23, 1978 Decker issued his decision. Stating, "it is better to allow those who preach racial hate to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear," Decker held that the ordinances violated the First Amendment and were unenforceable.


Doe v. University of Michigan (1989) The university passed a law in 1988 that prohibited any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed … and that “creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University[-]sponsored extra-curricular activities.” The law was passed when a campus anti-discrimination group threatened to file a class-action suit against the university because they were upset over several incidents, including the distribution of a flier on campus that declared “open season” on blacks and referred to blacks as “saucer lips, porch monkeys, and jigaboos.” The university published a guide explaining the speech code. The guide provided examples of harassing conduct, including: “You exclude someone from a study group because that person is of a different race, sex, or ethnic origin than you are. You display a confederate flag on the door of your room in your residence hall.  You comment in a derogatory way about a particular person or group’s physical appearance or sexual orientation, or their cultural origins, or religious beliefs.”

COURT RULING: “The Supreme Court has consistently held that statutes punishing speech or conduct solely on the grounds that they are unseemly or offensive are unconstitutionally overbroad,” the court wrote. The court also determined that the policy was unconstitutionally vague because people would have to guess at the meaning of the policy’s language. The court reasoned that it was “simply impossible to discern any limitation” on the policy’s scope and reach. The court concluded: “While the Court is sympathetic to the University’s obligation to ensure equal educational opportunities for all of its students, such efforts must not be at the expense of free speech.

R.A.V. v. City of St. Paul:  (1992) A juvenile burned a cross on the lawn of a neighboring African-American family in St. Paul, Minn. The youth was charged with violating a hate-crime ordinance, which provided, “Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.”

COURT RULING: Justice Antonin Scalia, writing the R.A.V. Court’s main opinion, reasoned that the ordinance violated the First Amendment because it selectively proscribed a certain subset of fighting words. To Scalia, such a ban would be like the government prohibiting only libel that was critical of the government. “The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects,” he wrote. “In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.”

Recent cases of cyber-harassment (the harassment is sometimes anonymous and can sometimes amount to hate speech):


Sources: (for individual cases) The Oyez Project is a multimedia archive devoted to the Supreme Court of the United States and its work. It provides summaries of many landmark cases that have gone through the Supreme Court.  Developed to provide teachers with a full range of resources and activities to support the teaching of landmark Supreme Court cases. Helps students explore the key issues of each case with different resources and activities.  A compilation of resources about a wide variety of constitutional issues, including free speech.  Massachusetts General Laws “Works to preserve and protect First Amendment freedoms through information and education. The center serves as a forum for the study and exploration of free-expression issues, including freedom of speech, of the press and of religion, and the rights to assemble and to petition the government”


Street Law: A Course in Practical Law, 6th edition.