Let me preface this by noting that I know next to nothing about sports, in America or elsewhere. I blindly cheer for my teams back home—the Chicago Bears, the Chicago Bulls, and the Chicago White Sox—with the same intensity I bring to a lot of other aspects of my life. (I've been accused of jingoism on more than one occasion.) But as a gay atheist who grew up in a not-immediately-tolerant environment (atheism wasn't seen as a lack of belief, but an absence of morals), I do know something about intolerance.
This morning, I shrugged off the news that Jason Collins, who has already spent 12 years on the court playing for half a dozen teams, came out as homosexual in this week's Sports Illustratedcover story. (Read a passage from Collins' announcement in this great background post by our Ryan O'Hanlon.) That's good; that's progress. Let's move on.
"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."
But then Outside the Lines booked ESPN's Chris Broussard for a special hour-long episode to discuss the coming out. The conversation between Broussard, who has written about his "beliefs" before, and openly gay correspondent LZ Granderson quickly devolved. "I don't believe you can live an openly homosexual lifestyle," Broussard said. "If you're openly living that type of lifestyle, then the Bible says ... that's a sin. And if you're openly living in unrepentant sin ... I believe that's walking in open rebellion to God and to Jesus Christ." So much for progress. (For what it's worth—very little, if anything—Broussard has been writing about sports for his entire life. He hasn't had much professional exposure to The Gays.)
And then I saw this tweet from Brandon Sneed: "Regarding Chris Broussard: Bear in mind that deriding him for his belief is the same as him deriding Collins/Granderson/etc for theirs." To his credit, Sneed walked that argument back a little, but not before I could send out a modified tweet prefaced with, simply, "No, it's not." The only way to respond, really, when you're limited to 140 characters.
The ensuing conversation, which I had sort of been hoping to avoid entirely (because, seriously: no fun), also devolved. There was a bit of choice back and forth between Sneed and myself—and between Sneed and others—but it seems his takeaway was this: "Broussard has the right to say what he wants. (Don't agree with what he said.) Collins/etc should have right to live as they live."
I take issue with that. It's the blanket free speech argument. (And I know that argument well. As a wildly conservative—this is back in the jingo days before I came out, when I was using the near-lethal combination of pen and temper to shield my own personal insecurities—high school student, I wrote a number of columns for the student newspaper and regional publications in the Chicago area on this subject.) But the blanket free speech argument is a weak one. Any journalist knows that. After a basic media ethics class (the easy way) or a handful of frightening emails from a subject (the hard way), you'll know a thing or two about libel and slander. There's also, of course, obscenity, child pornography, incitement, false or misleading advertising (all commercial speech is subject to limited protection), and speech owned by others (this is where trademarks and copyright issues come into play). Over the years, the U.S. Supreme Court has tightened the definition of free speech over and over again.
As a 15-year-old, that made me livid. Now, as a 25-year-old, I appreciate those restrictions, because, frankly, I don't want to listen to your bullshit. In fact, I don't think the existing restrictions go far enough.
In the 1942 9-0 decision of Chaplinsky v. New Hampshire, the Supreme Court outlined the fighting words doctrine, which pulls protection of speech—written or spoken—meant to incite hatred or violence.
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.
The fighting words doctrine has been tested numerous times over the last 70 years, losing power with each new decision. Flag-burning was allowed beginning in 1969 (Street v. New York). "Fuck the draft," because it didn't include any "personally abusive epithets" was given the all-clear in 1971 (Cohen v. California). In two cases, the Court overturned the convictions of those who had cursed at police officers (Lewis v. New Orleans and Gooding v. Wilson). And then, in 2011's Snyder v. Phelps, despite the dissent of the conservative, Bush-appointed judge Samuel Alito, the Court protected the protests of Westboro Baptist Church members, largely because they were directed at a general public and held in public locations.
Let's revisit that case again.
Broussard's words might not be considered fighting words when held against the history of the doctrine. But times change, and that's why new cases come forward to challenge old laws. The problem with the doctrine as it currently stands is that it implies incitement of violence or hatred by the receiver against the giver. It doesn't consider violence or hatred by the receiver against the receiver, violence or hatred against the self.
After a couple of years in which we've seen dozens of studies—LGBT youth who are bullied are far more likely to consider and commit suicide; acceptance from family and friends minimizes risk—and a similar number of deaths, Broussard's words, and the arguments by otherwise reasonable people that they should be protected by free speech, are no longer acceptable. They're fighting words.