Free speech does not protect individuals using epithets

Free speech does not protect individuals using epithets
Charles Williams v Town of Greenburgh, et al, 535 F.3d 71

A governmental entity may be sued for allegedly suppressing an individual’s Constitutional protected Freedom of Speech.

In the Williams case, the Second Circuit addressed, among other things, Williams’ allegation that the Town of Greenburgh’s actions against him were taken in retaliation for his exercising his right to free speech when it expelled him from a town facility and prosecuted him for trespass.

In addressing this aspect of Williams’ petition, the Second Circuit explained that it has “described the elements of a First Amendment retaliation claim in several ways, depending on the factual context, comparing Curley v. Village of Suffern, 268 F.3d 65, 73 (2d Cir. 2001) (requiring a private citizen who sued a public official to show: “(1) [the plaintiff] has an interest protected by the First Amendment; (2) defendants’ actions were motivated or substantially caused by his exercise of that right; and (3) defendants’ actions effectively chilled the exercise of his First Amendment right”), with Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003) (requiring evidence of “adverse employment action” where plaintiff was a public employee), and Gill v. Pidlypchak, 389 F.3d 379, 380 (2d Cir. 2004) (requiring, in the prison context, an adverse action by defendants and a causal connection between the adverse action and the protected speech).

Regardless of the factual context, said the court, it has required a plaintiff alleging retaliation to establish that his or her speech was protected by the First Amendment.

Citing Chaplinsky v. New Hampshire, 315 U.S. 568, the Circuit Court noted that “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or “fighting” words — those that by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument.

The court concluded that because Williams could not show that his speech was either silenced or chilled — i.e., that his right to free speech was actually violated — his claim failed as a matter of law and sustained the district court’s granting the Town’s motion for summary judgment dismissing his petition.

The decision is posted on the Internet at: