You Have the Right to Shut Up

–From Élise Hendrick, University of Cincinnati College of Law, Date of event: 2002

In my Con Law class, we were discussing the “fighting words” doctrine of Chaplinsky v. New Hampshire, in which the petitioner was arrested after distributing anti-Catholic literature and delivering an anti-Catholic harangue in a heavily Catholic neighbourhood in the 1940s. Upon asking why he was under arrest, the officer suggested that he, “Shut up, you damn bastard,” to which Chaplinsky, not to be outdone, replied by calling the officer a “goddamn Fascist” and a “damn racketeer.”

The class went on for about a half hour with comments on how the cop started it, and, how, as the prof summed it up “Chaplinsky got a raw deal.” At this point, unable to resist, I raised my hand and suggested that the Court had perhaps ruled against Chaplinsky because of his apparent ingratitude: “After all, all the poor officer did was urge Chaplinsky to assert his Fifth Amendment rights and he wasn’t even required to do that yet!”

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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