Background: State v. Johnson is a Washington County case in which a driver, William Charles Johnson, apparently used some sort of amplified sound equipment to hurl both racist and anti-lesbian epithets at two women — one of them an African-American — in a vehicle that had moved in front of his truck when the road narrowed from two lanes to one.

The Court of Appeals upheld Johnson’s conviction under our state’s so-called “fighting words” law, and now the Oregon Supreme Court has taken the case for review. The ACLU filed a “friend of the court” (amicus) brief in the case last month, and oral arguments are set for Jan. 7 in Gold Beach.

Governing Language
‘Fighting words’ are protected by the Oregon Bill of Rights
By David Fidanque

The ACLU doesn’t represent William Charles Johnson in his criminal case, and we find his words racist, bigoted and utterly detestable. Such verbal abuse causes deep and longstanding pain. It occurs far too often — in our schools, on our public streets, in our offices and homes — both casually and caustically, and its pain endures.

But words are not physical violence. Yes, words can hurt; but outrageous and even dangerous words can also create change and even have been known to start revolutions. If we allow words alone to be punished as criminal, our right to think and speak freely will be diminished. Oregon’s Constitution doesn’t allow it, and ACLU’s mission is to uphold the Constitution.

Article 1, Section 8, of the Oregon Constitution guarantees greater free speech protection than does the federal Constitution. It provides:

No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.

This provision is crystal clear, and Oregon courts have said that without a credible threat of physical violence, verbal harassment — no matter how heinous or bigoted the words — cannot be made criminal in this state.

The very nature of protecting free speech is that the ACLU is often called upon to do so in extreme situations. Speech that a majority of the public would support is rarely the focus of government punishment or censorship; it is almost always disfavored expression that is targeted by the government — in this case, egregiously bigoted language.

Keep in mind that criminal laws targeting speech have been used for centuries to isolate and punish disfavored minorities — including those who have organized to resist racist and homophobic laws and government policies. To give up our free speech protections based on the words used by Johnson — however foul — is shortsighted.

The ACLU has worked for decades in Oregon to end discrimination based on race, color, national origin, religion and sexual orientation.

We were instrumental in rewriting Oregon’s hate-crime law in 1983, known as “Intimidation,” to ensure its constitutionality. In 1989, we succeeded in expanding the law to protect people targeted because of their sexual orientation. In 1992, when that law was challenged, ACLU filed an amicus brief in support, and the Oregon Supreme Court upheld it.

The Johnson case involves a different law, the so-called “fighting words” provision of Oregon’s Harassment statute. That law makes it a crime to “harass or annoy … by publicly insulting” a person using “abusive words or gestures … intended and likely to provoke a violent response.”

The Oregon Court of Appeals threw out an earlier version of the law in 1984, and we urged the Legislature to repeal it in 1985. Instead, the Legislature chose to rewrite it, despite our warnings that the revisions were unconstitutional. State v. Johnson is the first appellate challenge in the 22 years since.

Had Johnson threatened physical violence, his actions could — and should — have been prosecuted as a hate crime under Oregon’s Intimidation law.

It is not up to the criminal courts to govern language; it is up to us, as a society. We must, each of us, exercise our own power of free speech by speaking out against any and all bigotry, from the casual, so-called “joke” to the vile language used by Johnson.

The letters to the editor in the Weekly have been the forum for just such a challenge, and rightly so, regarding the intentionally provocative “¡Ask A Mexican!” column. In these pages, in our homes and in our everyday interactions — that is where the struggle to address racist and homophobic speech belongs. Not in our criminal courts, unless there is actual physical violence or the threat of it.

David Fidanque is executive director of the American Civil Liberties Union of Oregon and has worked for the ACLU in Eugene since 1982.