i start the day in the usual way...

Today in our Free Speech class, we were discussing offensive speech that has a high risk of engendering a violent reaction from the listener. Speech might possibly be unprotected if it intentionally, knowingly, or recklessly inflicts severe emotional distress through outrageous means (ones that "offend generally accepted standards of decency or morality").

The hypothetical that preoccupied our class discussion was about insulting a widow. A man sends a an offensive card through the mail to the widow of a police officer who had recently been shot to death while making an arrest. The card had a picture of a pig on the front, and written on the inside was: "Sorry to hear about the dead piggy. No, really I am--I couldn't eat bacon for a week. Keep up the good job frisking those criminals. Rob." Apparently, the card was sent as a response to an incident in which two men were killed by police officers that summer. That is, "Rob" was implying that the widow's dead husband somehow deserved to die because the police had abused their power in the incident with the two men.

So the problem wasn't as easy as it may appear, since you can make a very good argument that Rob's speech was political, and had social value, since he was criticizing the police department. But most of the discussion focused on the idea that Rob's speech didn't contribute to the search for political/moral/social truth (which is a decidedly central theme of the First Amendment) since it was intended to harm the widow, and because calling her husband a "pig" contributes little if any to the exposition of ideas. That is, the card was just an insult, and as such is an instance of "low-value speech," which the Court in Chaplinsky implied would not be protected by the First Amendment.

I would strenuously disagree with that. There is no doubt in my mind that Rob's act, however tasteless, was motivated first and foremost by his own moral/social/political objection to the police department's excessive use of force. He explicitly makes a reference to this in the card, and the hypothetical itself tells us that Rob admitted as much when the police confronted him. If this were not the case, Rob would be sending these kinds of cards to random widows all over the place.

Because his motivation was a political one, I think his speech should at the very least be taken out of the "low-value" category reserved for mere insults. By placing such speech in the "low-value" category, we can only be punishing him for not being more eloquent or intelligent in his speech. Not everyone goes to Harvard. Not everyone can use Mill and Rawls in their speech to bolster their political arguments. I would interpret Rob's actions as blunt, impressionistic expressions of his own political argument. Yes, his action was at base reprehensible, but it was still grounded in an expression of political debate. And that is precisely what the First Amendment was intended to protect. It would be a mockery to say that the First Amendment only protects intelligent, well-informed speech. I believe it protects stupid political speech as well!

Because the exception from protection in Chaplinsky is justified on the grounds that such speech does not contribute to the exposition of political/moral/social ideas, such exception should not apply here. Rob's political idea was crystal clear: He doesn't like the way the police have abused their power. HOWEVER, I would still leave Rob's action unprotected because it intruded upon the widow's privacy, as it was sent to her house. Hence, I would not treat this case as one regarding free speech, but rather one's right to privacy. I would affirm a charge of harassment by mail.