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Free Speech Articles from First Amendment Center
'Free' and other 4-letter words
Inside the First Amendment
By Ken Paulson Executive director, First Amendment Center 11.17.02

No matter how much you support free expression, there’s always something that can challenge your beliefs.

Some are unsettled by violence on television; others have second thoughts about sexist or racist Web sites. Others question liberties taken in provocative books or art.

I can defend any banned book or controversial painting, but somehow the sight of a guy wearing a “F--- You” T-shirt at a county fair or football game gets under my skin.

You’ve seen him. Apparently unable to afford the “If I Only Had a Brain …” T-shirt, he wears America’s most overused phrase with pride.

The tacky T-shirt puts parents in a tough spot. They try to steer their kids in another direction, determined to avoid an embarrassing moment or question. Why doesn’t somebody do something about this rude behavior? Shouldn’t government be able to stop public vulgarity of this sort?

Of course, that’s when I come to my senses. Public profanity isn’t pretty, but it’s almost impossible for government to constitutionally designate some words as acceptable and others as inappropriate. The truth is that public profanity can violate our sensibilities, but generally doesn’t violate the law.

The Idaho Supreme Court made that point a few weeks ago in overturning the misdemeanor conviction of a man who cursed at a police officer in a 1998 incident.

Patrick Sheldon Suiter had gone to the Canyon County Courthouse to speak to an officer about a fraudulent-check case in which a friend was victimized. The officer refused to file a complaint without some verification that Suiter was authorized to act on behalf of the victim. Suiter became angry and critical of the police department. After being told by the detective to calm down, Suiter said, “Hey, f--- off” and began to leave. He was then arrested by two officers and accused of disturbing the peace.

Police said Suiter wasn’t arrested for what he said, just how he said it. The U.S. Supreme Court concluded long ago that a profane expression cannot be the sole grounds for prosecution. In a landmark case in 1971, the high court dismissed a charge of disturbing the peace against a man whose jacket bore the message: “F--- the draft.” In finding that “one man’s vulgarity is another’s lyric,” the court essentially barred the future prosecution of vulgar written messages, including bumper stickers and T-shirts.

Suiter’s profanity was spoken, not written, but the Idaho Supreme Court cited that profane protest of the draft in concluding that Suiter’s insulting remark to the police officer was indeed speech protected by the First Amendment.

The court noted that abusive and highly provocative epithets directed toward ordinary citizens can be banned as so-called “fighting words.” But in this case, the comment was addressed to a police officer, a public servant with a duty not to be provoked to violence by mere words. In addition, a total of just six people heard the remark, none of whom characterized it as yelling, shouting or screaming. It was an uncomfortable moment, but not a highly disruptive one.

Courts face an extraordinary challenge in addressing these issues. Words that were once shocking to polite society are now staples on both cable and broadcast television. Rather than try to legislate language, government can realistically only prosecute the disruptive behavior that sometimes accompanies profane language.

Profane words may be constitutionally protected, but that doesn’t give us a license to say whatever we want, wherever we want, and most important, however we want. In other words, “fire” is not the only word you can’t shout in a crowded theater.

ACLU fights Pennsylvania police on profanity arrests
By The Associated Press
07.10.02

PITTSBURGH — Erica Upshaw was having one of those days.

The mother of three was rushing a load of groceries to her sister's house when she was pulled over by an officer who said she had made an incomplete stop.

When told her driver's license was suspended, Upshaw used a profanity to describe her day. She ended up in jail for her choice of words.

"It was so humiliating," recalled Upshaw, 28, who said she was trying to get home to tend to a 6-year-old daughter who had just lost a tooth.

The American Civil Liberties Union says that when North Braddock police arrested Upshaw in the summer of 2000 for foul language, the officers joined a growing number of police who have crossed a line drawn by the courts.

Upshaw's case is at the center of one of two lawsuits the ACLU filed last week in federal court in Pittsburgh, accusing area police departments of violating people's right to free speech. The lawsuits seek unspecified damages.

The lawsuits are intended to warn police across the nation, said Witold Walczak, executive director of the ACLU's Pittsburgh chapter. He said officers need to realize they create tremendous stress on people and should expect emotions to spill out.

Every state has laws against foul language, but the courts, including the U.S. Supreme Court, have generally agreed that the words have to be used in a violent or sexually obscene context, said John Burkoff, associate dean and law professor at the University of Pittsburgh. Uttering something vulgar or profane is not, in itself, grounds for arrest, he said.

In one case out of Michigan, Timothy Boomer, a canoeist who let loose a stream of curses after falling out of a canoe, was found guilty three years ago of violating a law against cursing in front of women and children. He was fined $75 and ordered to perform four days of community service. In April, though, an appeals court struck down the 105-year-old law and threw out the conviction.

Jim Pasco, executive director of the National Fraternal Order of Police, disputed the notion that police are misusing the disorderly conduct laws. He said officers may feel it is necessary to arrest someone on a minor charge to prevent more serious crimes.

The ACLU said it has been receiving five or six complaints a year from western Pennsylvanians arrested for swearing. Last month, Pittsburgh police agreed to pay $275,000 to settle 32 cases brought by the ACLU, some of them involving profanity arrests.

In Upshaw's case, a judge threw out the disorderly conduct charge because her words were scatological but not sexually explicit. And a driving-without-a-license charge was dropped when it turned out that her suspension resulted from a computer glitch.

But she still ended up spending an afternoon in jail. She could have gotten up to 90 days in jail and a $300 fine on the disorderly conduct charge.

Upshaw contends she was calm and swore only once. "They were really hostile," she said. But a police report said officers warned her five times to stop cursing, and described her as "loud and belligerent."

"Our police aren't out there just to arrest people who swear," said North Braddock Police Chief Henry Wiehagen. "There had to be a little more involved than just her vocabulary."

The ACLU's second lawsuit stems from the arrest of Amy Johnson, 27, a Chatham University student, and Gregory Lagrosa, 29, a University of Pittsburgh student. Johnson swore at a passing Homestead patrol car.

Johnson claimed that the car came dangerously close to the couple in a crosswalk.

A judge dismissed the charges, again because Johnson's words were not sexually obscene.

Homestead Mayor Betty Esper is standing firmly by the town's officers. She said preventing officers from making foul-language arrests could have a harmful effect on society, particularly when it comes to teaching children manners.

"If every kid can tell officers to go to hell and if police officers go break up a fight, can the kids say, 'Go stuff yourself?' " Esper asked.

Idaho high court reverses cop-cusser's conviction
By The Associated Press
10.29.02

BOISE, Idaho — The conviction of a Canyon County man for disturbing the peace by using a four-letter word during an exchange with police was overturned yesterday by the Idaho Supreme Court.

The unanimous court said the statement Patrick Sheldon Suiter made in frustration in early 1998 was not likely to provoke violence and therefore was protected under the First Amendment's free-speech guarantee.

"While Suiter's statement was vulgar and impolite, the phrase is relatively common," Justice Wayne Kidwell wrote for the court.

The court reversed a rarely divided state Court of Appeals, which voted 2-1 to uphold the conviction on grounds that the provocative word could not be reasonably interpreted as the protected communication of information or opinion.

Dissenter Karen Lansing argued that while the word is insulting, justifying arrest if "an individual uses the 'f-word' in an agitated conversation with a police officer or with any other person" creates a new circumstance for otherwise unjustified police arrests or searches. She called Suiter's comment the vulgar equivalent of "Go jump in the lake."

The Supreme Court did not address the prospect of unjustified arrests or searches and did leave open the possibility that Suiter could still be convicted in a new trial if the state showed that his behavior — not his words — disturbed the peace and the jury was clearly instructed that Suiter's words were not to be considered.

Suiter had gone to the sheriff's office at the request of a friend to speak to a detective about a check-fraud case in which the friend was the victim. The detective said he could do nothing without some verification from the victim that Suiter was authorized to act on the victim's behalf.

Suiter became agitated as the conversation progressed, according to police, and when the detective asked him to calm down, Suiter raised his voice, said the provocative word and turned to leave. It was then that two other deputies arrested him.

The Idaho Supreme Court ruling follows its decision in 2000 upholding the disturbing-the-peace conviction of a Rathdrum woman, who used the same word and another vulgarity in yelling at her 14-year-old daughter to stop talking while two other children were present.

Supreme Court won't hear dispute over cursing at cops
By The Associated Press
05.03.04

WASHINGTON — The Supreme Court, sidestepping a dispute over cussing, refused today to consider whether a Montana man's foul language to a law enforcement officer was free speech protected by the Constitution.

The man, Malachi Robinson, was walking down the street about midnight four years ago when he called the Missoula county deputy in a nearby squad car a "(expletive) pig." The deputy got out and confronted Robinson, who uttered another expletive at the officer.

His swearing earned Robinson a $50 fine for disorderly conduct. He also was sentenced to 10 days in jail, but the judge suspended that.

Today the justices declined without comment to review his appeal in Robinson v. Montana. Their refusal does not address the merits of the issue.

By declining to hear Robinson's appeal, justices left undisturbed a Montana Supreme Court ruling that unprovoked utterances are not protected.

"The First Amendment ought to protect citizens who criticize officials, even if it's in a crude manner, as long as there was no threat involved," Robinson's attorney, Jeffrey Fisher of Seattle, said in an interview.

Fisher said while the comments may have been "crude, obnoxious and offensive," they did not rise to the level of threatening "fighting words" unprotected by the First Amendment.

Fisher said courts around the country are divided over what constitutes "fighting words," and that without clarification from the Supreme Court some people could be unfairly targeted.

"Officers whether consciously or not may selectively arrest some people for using profanity toward them, while turning the other cheek with respect to others," Fisher told justices in a court filing. "This is not an acceptable way to administer criminal law, especially where free speech concerns are at stake."

A criminal lawyers' group urged the Court to hear the case of Robinson, who did not have enough money to pay the standard fees in his Supreme Court appeal.

The conviction stigmatizes Robinson and also stands in the way of his job opportunities, Washington lawyer Katherine Fallow, representing the National Association of Criminal Defense Lawyers, told justices.

The state of Montana did not file a response to the Supreme Court appeal.