More on Phelps and free speech

Following up on Steve S.'s post, from a few days ago, on the Phelps case:  Here is an essay by Hadley Arkes, posted at "Public Discourse", on the same case.  Arkes writes, among other things:

. . . The Chaplinsky case also had the advantage of building on a tradition of understanding in the law that “assaults” did not strictly require the laying on of hands. One could shoot and deliberately miss. One could hold an unloaded gun near the head of a victim and click the trigger. There was not that much discrimination between an act of that kind and threatening calls in the night, or letters of extortion—or a cross burned outside the home of a black family. People who knew the conventions in their own language would have no trouble telling the difference, say, between a burning cross and a burning shoe box. With this understanding, swastikas and burning crosses and blazing epithets could be understood as “assaults” as fully as rocks thrown at victims.

With Justice Harlan’s turn in the Cohen case, the judges would essentially remove from the notion of “fighting words” those words “which by their very utterance inflict injury.” The wrong would be narrowed to those words that were spoken in a face-to-face encounter, in a distinctly personal attack, and likely to trigger a violent reaction. That formula has proved inapt at every level. . . .