Thin skin

In 1942 on a busy street in Rochester, N.H., Walter Chaplinsky Chaplinsky was passing out Jehovah Witness religious literature that denounced all other religions as "rackets."

His activities caused a stir and the city marshal warned Chaplinsky that he was on the verge of causing a riot and ought to leave. He responded to the marshal by saying, "You are a God damned racketeer ... a damned fascist and the whole government of Rochester are fascist or agents of fascists."

Chaplinsky was arrested for disturbing the peace. He appealed on grounds that his First Amendment rights had been violated. However, the U.S. Supreme Court in Chaplinsky vs. New Hampshire unanimously ruled against him and said that his words were "fighting words" and not deserving of First Amendment protection because they were "likely to provoke the average person to retaliation."

"Fighting words" remain one of the limited classes of speech not protected under the First Amendment. Someone should remind Salem city officials that government representatives are not supposed to use their raw power to retaliate against a citizen simply because they are provoked. A recent incident in that municipality gives new meaning to Chaplinsky’s claim that a whole town of government officials could be fascists.

Chip Givens is a long-time bookstore owner in Salem. He recently put a sign outside his store that said, "Thank Mayor Tarpley and Forest Jones for this mess at 375-3016." Givens has been at odds with Salem officials over a VDOT project that closed access to his store for many customers. Since the construction began in February, his sales have declined and book buyers have complained about the access issue. The project is not expected to be completed until next summer.

Last Tuesday, a city administrator took the protest sign down. It seems that Salem has an ordinance prohibiting advertising signs that are unrelated to the business activity conducted on the premises. Givens’ sign targeted the mayor and city manager as opposed to promoting books and thus, according to Salem officials, he was in violation of the ordinance.

Givens believes he has a First Amendment right to protest the actions of government officials. Conversely, Salem administrators say they are simply enforcing the law. Givens is right and Salem officials, in a moment of political and personal pettiness, are acting like fascists. The sign doesn’t pose a public safety issue. Nor is there the likelihood of a physical fight between citizens because of the sign. Mayor Tarpley and City Manager Jones could press a libel claim against Givens but the suit would have no merit. Thus, the mayor and city manager have simply decided to hide behind bureaucratic legalese to restrict Givens’ First Amendment rights of speech.

Of course, the bookstore owner could easily evade the bureaucrats on this one. He could erect a new sign that read, "Fascism and the Road Mess: Mayor Tarpley, Forest Jones and Chaplinsky vs. New Hampshire." Those additions should put Givens’ sign in compliance with the ordinance. Of course, he may want to have a copy of a book that discusses Chaplinsky on hand when the bureaucrats come snooping around.

It appears that using the ordinance against Givens is a spillover from a 2000 campaign when he ran for a seat on the Salem City Council. He lost. The city manager believes the sign is payback. Givens denies the accusation.

As professional wrestler and movie star "The Rock" is prone to say, "It doesn’t matter" why Givens put the sign up. The speech is constitutionally protected. He doesn’t have to justify the sign to government officials or agents.

The entire Roanoke Valley seems to be infected with "thin skin" politicians and professional managers. Roanoke City Manager Darlene Burcham recently filed libel charges against the publisher of an online newsletter. I have written about libel suits in this column previously (for instance, see Libel to lose) and don’t believe that her case has the essential elements — malicious intent, an intentional assertion of a provable falsehood and irreparable damage to her reputation — to win a favorable judgment. Still, Burcham deserves credit for hiring a private attorney (at her own expense) to pursue the case.

That’s what makes the Salem case so troubling. Here, officials are using the machinery of government to punish a citizen in a childish dispute. That is both scary and illegal. Hopefully, Salem residents will see the sign removal by local bureaucrats for what it is — administrative despotism. As it happened, the next day, Salem officials relented and allowed Givens to restore the sign's letters.

The Chaplinsky case was settled correctly. His language was provocative and would have caused a riot. Yet, the central message of Chaplinsky’s rant (that small town government can act in a fascist manner and deprive the citizen of legitimate First Amendment protections) should not be lost or dismissed. Admittedly, Chaplinsky’s activities do not make him a good poster boy for this cause but neither did the case of convicted rapist Ernest Miranda. Yet, because of the Miranda ruling, we all enjoy enhanced Fifth Amendment protections against self-incrimination if in police custody.

However, Givens is a guy we all rally around. His situation reminds us all that administrative "thin skin" is the only thing that separates democratic and fascist tendencies in local governmental behavior. Let’s hope local politicians and public administrators develop begin to develop tougher skin and accept that the hot light of public criticism comes with the turf. As my grandmother used to say, if it’s too hot in the kitchen, get out.