Â Â Â Â I still haven't made up my mind as to who was right and who was wrong in the matter of the arrest of Henry Louis Gates.Â Â I am confident that all the facts will emerge either through good investigative reporting or because some television show will induce both men to speak to each other about the incident and it will become clear what precisely happened.Â (Previous posts referencing early news reports and statements of each man are linked here and here.)Â My hope is that these are two good men who simply misunderstood each other.Â In the meantime, here are two decisions of the Supreme Court that may inform the discussion.
Â Â Â Â The Equal Protection Clause only applies to "state action," that is, to the actions of the government.Â It does not apply to the actions of individuals or private organizations.Â When a government official like a police officer or a judge acts illegally, it that state action?Â Are the illegal acts of government officials nevertheless attributable to the government?
Â Â Â Â Â The answer to this question is "Yes," according to an 1879 decision of the Supreme Court.Â In Ex Parte Virginia the Supreme Court ruled that if a government official performs actions in the course of his duties, then it constitutes "state action," even if the official's conduct was in violation of state law.Â In that case a state judge precluded blacks from sitting on juries even though no statute permitted that kind of discrimination.Â The Supreme Court ruled that the judge's illegal acts of racial discrimination violated the Equal Protection Clause.Â The Court stated:
A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.
Â Â Â Â The other decision relevant to this incident is Chaplinsky v. New Hampshire (1942), in which Supreme Court announced the "fighting words" doctrine, which is an exception to the First Amendment.Â Chaplinsky was a Jehovah's Witness whose words were creating a disturbance at a busy intersection.Â Initially, the police protected Chaplinsky from other citizens, but when the crowd became unruly Chaplinsky was taken into custody.Â Chaplinsky called one of the police officers "a god-damned racketeer" and a "damn fascist," and for uttering these words Chaplinsky was arrested and convicted for breaching the peace.Â
Â Â Â Â The Supreme Court ruled that the First Amendment doesn't give individuals the right to provoke other people to the extent of picking a fight.Â The breach of the peace statute prohibited people from uttering "offensive" words to each other in a public place, and the New Hampshire Supreme Court adopted the following definition of the term "offensive":
Â Â Â Â The word 'offensive' is not to be defined in terms of what a particular addressee thinks. . . . The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight. . . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. So are threatening, profane or obscene revilings. Derisive and annoying words can be taken as coming within the purview of the statute as heretofore interpreted only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace. . . . The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker — including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats.
Â Â Â Â The United States Supreme Court approved this definition, and the Court concluded:
Â Â Â Â Argument is unnecessary to demonstrate that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the average person to retaliation, and thereby cause a breach of the peace.
Â Â Â Â Police officers are not supposed to respond to insults or provocations with the use of force – the Court is not saying that a police officer or any other "reasonable person" has the right to resort to violence when he or sheÂ is insulted.Â The Court is instead saying that no-one has a constitutional right to make any person – police officer or not – want to take a swing at him.Â The "fighting words" doctrine does not apply to the expression of general political or religious views – it applies to personal insults delivered face-to-face.Â
Â Â Â Â The Court's unanimous opinion in Chaplinsky was written by Justice Frank Murphy, who was the most liberal member of the Court at that time.Â As Attorney General, Murphy had created the Office of Civil Rights within the Justice Department.Â I wonder what he would have thought about the Gates incident!