A prankster sets up a projector and shines images of swastikas onto the side of a synagogue as worshippers enter. A vandal extinguishes the eternal flame that marks the grave of President John F. Kennedy. A computer hacker attacks an online memorial dedicated by a grieving family to its recently deceased teenage son by superimposing pornography all over the website. Each of these situations is similar to an event that actually has occurred or has been hypothesized by a Supreme Court Justice.
And then there are behaviors that seem similar to the above events, but raise other issues. A group of people who hate the military carries signs displaying homophobic slurs near the funeral of a soldier killed in combat. A rogue publisher prints a cartoon that depicts a clergyman having an affair with his mother in an outhouse, and the publisher later testifies that he intended to hurt the clergyman through his tasteless publication. These, too, are situations that have actually occurred and the Supreme Court has written about.
These are examples of behaviors that I call desecration. Desecration includes utterances that most people would find of little value, although this characteristic alone does not keep them from qualifying as protected speech. But the above situations involve more than mere tastelessness or offensiveness. The behaviors in the given examples cause actual harm. Furthermore, that harm sometimes includes suppression of speech initiated by others. The problem remains, however, that in some cases the speech or behavior involves a glimmer of expression on a subject of public interest; a weak association with protected speech accompanies the harm. The courts have experienced considerable difficulty in separating protected speech from unprotected desecration.
Unfortunately, none of the Supreme Court’s opinions provide clear direction for resolving this problem. Snyder v. Phelps, the case involving a homophobic demonstration near a soldier’s funeral, is the Court’s most recent pronouncement relevant to this issue. But in Snyder, the Court declined to address whether there is a type of speech that is unprotected as desecration, saying only that “there [was] ‘no suggestion that the speech at issue fell within one of the categorical exclusions from First Amendment protection.’” Additionally, because the Court treated the particular demonstration at issue as protected, the Snyder opinion naturally occupies itself with extending the freedom of expression, rather than with defining the types of speech that are not protected by the First Amendment. Thus, although the Supreme Court’s decisions, including Snyder, certainly provide clues about the inquiry pursued in this Article, the Court’s decisions just as certainly leave the question unanswered.
One way to approach this lingering problem is through the formula that the Supreme Court generated in Chaplinsky v. New Hampshire. In Chaplinsky, the Court recognized that there are unprotected categories of utterances, or what might be called “speech that is not speech,” and the Court used this concept to allow the prohibition of “fighting words.” The two defining characteristics of unprotected utterances, said the Court, are first, that they “are [not an] essential part of the exposition of ideas,” and second, that they “are of such slight social value as a step to truth” that any positive aspect the utterances might have is “clearly outweighed by the social interest in order and morality.” The Chaplinsky test offers the prospect of minimizing severely harmful utterances while maintaining the protection of speech. Since Chaplinsky, the Court has used this general approach to define other categories of unprotected utterances, from child pornography to defamation.
This Article begins by describing the Chaplinsky formula. It then considers an important proposition that is implicit in Chaplinsky: the notion that there are hierarchies of speech, with some types of expression accorded a higher status than others. The Article then proceeds to its real work: the adaptation of the Chaplinsky formula to utterances that desecrate the symbolic expression of others. There is a special impediment to this adaptation, since some valuable utterances include ridicule, sarcasm, and devaluation of the speech of others. Here, the Article introduces the concept that the unifying factor in the upper hierarchies of speech is its quality of discourse about public issues, or the degree to which the speech seeks to conduct dialogue on matters of public concern. A type of utterance that does not have this characteristic, and which seeks only to destroy the expression of others as a matter of personal, invidious pique, is of low speech value, and, if it causes serious harm to others’ freedom of expression, my thesis is that it can be subjected to a test that may treat it as unprotected desecration.
The Article then seeks to apply this concept to various expressive acts that seem to have speech value and to compare these to messages that might better be treated as unprotected desecration. A final Part sets out my conclusion: that the Chaplinsky formula may serve to identify a category of desecration that can be treated as unprotected.
