Offensive language
Offensive language encompasses words or expressions that are vulgar, obscene, profane, or insulting, often leading to conflicts over freedom of speech and censorship. This type of language can be categorized into several groups, including fighting words, hate speech, and symbolic speech, each with unique implications for legal protection and societal norms. Fighting words are those deemed likely to provoke immediate violence or breach of the peace, while hate speech targets specific groups with malicious intent and is generally unprotected under free speech laws. Courts have grappled with the balance between protecting free expression and preventing harm, exemplified by landmark cases such as Chaplinsky v. New Hampshire and Cohen v. California. These rulings illustrate that while offensive language may provoke strong reactions, the expression of ideas—even if vulgar—can be safeguarded under the First Amendment. Censorship of such language often raises constitutional concerns, as evidenced by various state laws that have faced challenges in courts. Overall, the debate surrounding offensive language highlights the tension between individual expression and community standards, making it a complex issue within legal and social discourse.
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Subject Terms
Offensive language
DEFINITION: Vulgar, obscene, profane, or insulting words
SIGNIFICANCE: Some words and forms of expression, by their nature, so readily offend certain people that language often becomes a target of censorship
The U.S. Supreme Court has held that some offensive language may be censored, but that political ideas are generally protected, even if communicated offensively. The larger category of offensive language may be separated into the topics of fighting words, symbolic speech, and hate speech. Sometimes, these categories are taken to include profanity—irreverent utterances that offend the holders of certain religious beliefs. For example, the Federal Communications Commission attempted to regulate broadcasting indecency complaints by enforcing a federal statute that imposed fines and prison sentences on “whoever utters any obscene, indecent, or profane language by means of radio communication.”
The classic case regarding fighting words is Chaplinsky v. New Hampshire (1942), in which the appellant addressed a city marshal as a “God-damned racketeer” and “a damned Fascist.” The Supreme Court ruled that Walter Chaplinsky’s words were unprotected by the First Amendment because they were fighting words, or words that “inflict injury or tend to incite an immediate breach of the peace.” Because of this decision, governments may prohibit or punish such language as a breach of the peace.
The Court’s decisions regarding symbolic speech also indicate what may and may not be censored. Symbolic speech is recognized by the Court as having First Amendment protection in certain circumstances and having the same impact as the spoken word. Because of offensiveness, the state of California prosecuted Robert Cohen for breach of the peace after he wore a jacket that had “Fuck the Draft” written on it inside a Los Angeles County Courthouse. The Court did not see Cohen’s action as a breach of the peace, but instead, communication of ideas. Conservative Supreme Court Justice John M. Harlan, who authored the opinion in Cohen v. California (1971), stated in defense of Cohen’s jacket that “one man’s vulgarity is another man’s lyric.”
Hate speech is a form of offensive language characterized by malicious intent and the use of slurs or epithets against those of racial, ethnic, religious, or other groups. Hate speech is very closely related to fighting words in that it involves a personal attack. Because of its insulting and repugnant nature, hate speech is subject to censorship. The 1992 case of R.A.V. v. St. Paul tested the constitutionality of a law prohibiting hate speech. That law failed to meet constitutional standards, as it required a content distinction in its enforcement.
Several states, including Alabama, Mississippi, North Carolina, South Carolina, and Virginia, have laws against offensive or abusive language, but such laws are often vulnerable to challenges on constitutional grounds. New York had a provision against "abusive and obscene language" in its harassment statute until 1989 when the state's Court of Appeals ruled that it was unconstitutional after a seventeen-year-old girl was arrested for insulting a neighbor in public. North Carolina also had a law banning "profane language" in public, which was struck down by a country court in 2011 in the case of a woman who, after being told by police officers not to stand in the street, told them to "wash [their] damn dirty car" as she returned to the sidewalk. In 2016, South Carolina's law that criminalized the use of profanity near a church or school was challenged, but because the individual in the particular case had used words considered "fighting words," they were convicted. Hate speech is not protected by the right to free speech.
Because offensive language affects the sensitivities of some individuals, censorship becomes an issue. However, the Court noted in the Cohen case that people cannot “forbid particular words without also . . . suppressing ideas.” Unlike the speech uttered by Chaplinsky, the ideas expressed on Cohen’s jacket were expressed to no one in particular. Rather, they communicated in general his political ideas. Based on such cases, the Court has acknowledged the distinction between language which is involved in the exchange of ideas and language which merely serves as a personal offense against another. Therefore, the greater the likelihood speech serves only to distress or provoke others, the lesser the likelihood it will be afforded constitutional protection.
Bibliography
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"Citizen's Guide to U.S. Federal Law on Obscenity." Criminal Division, U.S. Department of Justice, 11 Aug. 2023, www.justice.gov/criminal/criminal-ceos/citizens-guide-us-federal-law-obscenity. Accessed 20 Oct. 2024.
Ham, Paul. "Censoring Offensive Language Threatens Our Freedom to Think." Psyche, July 2024, psyche.co/ideas/censoring-offensive-language-threatens-our-freedom-to-think. Accessed 20 Oct. 2024.
Hudson, David L., Jr. "Fighting Words Case Still Making Waves in First Amendment Jurisprudence." Newseum Institute, 9 Mar. 2012, www.newseuminstitute.org/2012/03/09/fighting-words-case-still-making-waves-in-first-amendment-jurisprudence. Accessed 1 May 2018.
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Verhovek, Sam Howe. "New York Court Voids Law on Abusive Language." The New York Times, 20 Dec. 1989, www.nytimes.com/1989/12/20/nyregion/new-york-court-voids-law-on-abusive-language.html. Accessed 1 May 2018.