Our “Inconvenient” Constitution

Addressing the controversy over the Koran-burning Florida preacher, a story syndicated by USA Today a couple of weeks ago bemoaned our “inconvenient Constitution.” At first, I thought that merely an unfortunate phrase – something akin to “annoying laws” or “bothersome principles” – but was surprised when I did a Google search that resulted in thousands of hits on the same idea. Seems as though a lot of people look upon the First Amendment as an irksome thing; indeed, several authors cited their belief that if put to a popular vote, most people would today not endorse the freedoms granted by the Bill of Rights.


Sadly, they are probably correct. For the brilliance of the Constitution is that it is at once democratic – the first words, after all, are “We, the people…” – and non-democratic, enforcing crucial protections for minorities who need a shield from the danger of the empowered mob.

Here is the context of that USA Today article: “The Constitution won’t let you yell ‘fire’ in a crowded theater if there isn't one. It won't let you utter ‘fighting words’ with impunity. But scholars agree it will let a pistol-packing minister of a tiny fundamentalist church outrage countless Muslims by burning the Quran, a book he says he hasn't read.”

Yes, the Constitution does protect actions like the one that Terry Jones proposed, and well it should. As the great justice Oliver Wendell Holmes wrote, the Constitution stands for the principle of free thought –especially the "thought that we hate.” (United States v. Schwimmer, 1929)

Still, the USA Today authors may have a point worth considering. It was also Holmes who wrote the opinion that cited the example of “falsely shouting fire in a theater” (Schenck v United States, 1919) which, he asserted, would not pass even “the most stringent protection of free speech.” And why? Because it would cause “a panic.”

Now, Holmes lived a long life. He was wounded fighting for the Twentieth Massachusetts Infantry Regiment in the Civil War and was around to watch FDR get inaugurated in 1933, one of the most compelling biographies of American history. He had come from great stock: his father, Oliver Wendell Holmes, Sr., was a hugely popular novelist of the 19th century at the same time that he was an anatomy professor and researcher at Harvard Medical School. Indeed, Holmes – the senior – was one of the first people to write of the germ theory of disease.

But the world that Oliver Wendell Holmes – the younger – inhabited had no virtual experiences like we do now, was more local than national, and certainly not global. And so, you have to wonder: how might Holmes have reacted to the Koran-burning controversy if he were a citizen of the 21st century? Is the Internet to our time as a theater was to his? In a global world, does the false shout of “fire” equate to an act that needlessly stirs passions beyond the scope of any legitimate communication? Does anyone doubt that the burning of the Koran was a subject ready to set off a “panic’?

And, then, what of the USA Today authors’ other reference? Since the Supreme Court’s 1942 decision in Chaplinsky v. New Hampshire “fighting words” have been deemed unprotected by the First Amendment. Interestingly, that case also revolved around religious expression. Walter Chaplinsky was a Jehovah’s Witness who was passing out literature to pedestrians in the small town of Rochester, New Hampshire when he was reported by locals for his incendiary dialogue. (In fact, recent research suggests that it was the people in the crowd – and not Chaplinsky – who were first to strike, for it was they who taunted Chaplinsky for his faith’s refusal to salute the flag.) As tensions mounted, the local marshal arrived on the scene and confronted Chaplinsky who promptly called him a “racketeer” and a “fascist.”

Chaplinsky was charged with the rather dubious crime of calling someone an offensive name in public. That’s an arrest that would never be upheld today. Nonetheless, the case it inspired did give rise to the unanimous 1942 decision that “fighting words” – that is, words that by their very nature “inflict injury,” lack any communicative value and are more akin to violent action than they are any expression of ideas – should be left unprotected by First Amendment. In a succeeding case, Brandenburg v. Ohio (1969), the Court clarified its standard, determining that to be held unprotected, the speech must be attached to the serious threat of “imminent lawless action.” But while so limited, the “fighting words” doctrine nonetheless continues in force.

In teaching the First Amendment, I have always found it interesting that this doctrine punishes the eloquent over the inarticulate, the powerful over the neglected. Think about it. If one’s speech is compelling enough to incite imminent violence, it is unprotected, but if it is unlikely to produce action, it is protected. Imagine a man with a mob and a torch marching to his encouragement towards the White House. Now, compare that to the homeless person in Times Square who says he wants to kill the president.

With a congregation of barely fifty members, Preacher Jones was more like the latter, a superficial figure spouting an incendiary idea (both literally and figuratively). But with word of his plan beamed to millions over the Internet, he became, in an instant, more like the man with a mob and a torch and that is why he got our attention. Disseminated worldwide through the power of the electronic media a crazy idea can become a powerful one.

Should the force of technology change how we view something as elemental as speech? In this instance, for many, it did.

TB