DESECRATION: IS IT PROTECTED SPEECH?

David Crump, University of Houston Law Center

Abstract

A prankster projects images of swastikas onto a synagogue. A vandal extinguishes the eternal flame at JFK’s grave. A hacker pastes pornographic images over an online memorial to a deceased teenager. These are real-world examples of what might be called “desecration,” and many if not most people might conclude that they should not be protected by the First Amendment.

But the freedom of speech does extend to some kinds of similarly offensive and hurtful messages. The Supreme Court has upheld a homophobic demonstration near a soldier’s funeral as well as a fictional story and crude cartoon that understandably offended their target. The problem is, the courts have experienced significant difficulty in distinguishing protected from unprotected utterances in this area, and the Supreme Court has recently refused to decide whether there is a category of desecration that is outside the coverage of the First Amendment.

This article attempts to answer this lingering question. It proposes that a test consisting of several ingredients may be suitable for distinguishing protected speech from unprotected desecration. The Supreme Court’s decision in Chaplinsky v. New Hampshire suggests the basic outline of such a test, by recognizing a category of unprotected utterances that combine negligible value as discourse with harm that clearly outweighs any value they might have. The Court’s decisions also establish that a message communicated purely for private reasons, devoid of any possible discourse on a matter of public importance, ranks lower in the hierarchy of protected speech than the highest forms of expression. The presence of clearly identifiable harm from an act of desecration is also a factor, especially if the harm takes the form of interference with the expression of another and therefore combines low First Amendment value with an actual conflict with First Amendment values. In defining unprotected desecration, the courts should ensure that the balance is unevenly weighted, by a requirement that the harm clearly outweigh the value, so that the test is less likely to consider the unpopularity of the message as a factor creating liability. The courts should use this balance to recognize a narrow, specifically defined category of unprotected utterances rather than depend on utterance-by-utterance determinations. With these principles guiding them, the article concludes, the courts should be able to distinguish speech that is protected by the First Amendment from desecration of a type that should be unprotected.