CEO, Comedy Central: Take Daniel Tosh off the air

[Warren DeMontague]

41. I agree with a petition to get him off comedy central. One point about the 1st Amendment, though:

You can ask a network not to air his show, or a club not to hire him, but that is very different than arguing that his speech is not constitutionally protected. It is. It can be vile, hateful, and obnoxious, but it's still protected by the 1st Amendment.

The so-called "Fighting Words" doctrine has been seriously (and correctly, to my mind) weakened since the 1942 Chaplinsky decision. While speech we find noxious is protected, so is other potentially unpopular speech. For instance, a person getting on stage at a Fundamentalist Christian Rock concert and delivering a speech to an anti-gay crowd, advocating marriage equality for LGBT citizens, could just as easily be considered "fighting words" in that an argument could be made that they were deliberately designed to upset the audience. Limiting speech because some or lots of people don't like it is a very bad road to go down IMHO.

http://en.wikipedia.org/wiki/Fighting_words

Post-Chaplinsky

The court has continued to uphold the doctrine but also steadily narrowed the grounds on which fighting words are held to apply. In Street v. New York (1969),[2] the court overturned a statute prohibiting flag-burning and verbally abusing the flag, holding that mere offensiveness does not qualify as "fighting words". In similar manner, in Cohen v. California (1971), Cohen's wearing a jacket that said "fuck the draft" did not constitute uttering fighting words since there had been no "personally abusive epithets"; the Court held the phrase to be protected speech. In later decisions—Gooding v. Wilson (1972) and Lewis v. New Orleans (1974)—the Court invalidated convictions of individuals who cursed police officers, finding that the ordinances in question were unconstitutionally overbroad.

I actually think that, rather than "fighting words", Tosh's comments might fall under "incitement", in that one could argue that he was directly exhorting people to engage in a violent criminal act.

And, welcome to DU.