I have seen a couple of news stories on this now. This is another example of the classic battle between public order and personal freedoms.
The ACLU has filed suit on behalf of individuals who were issued tickets for swearing, either at police officers or other motorists. See the entire article here.
The Colbert Report also recently featured Robert Ekas, an individual who gives police officers the middle finger whenever he sees them, and is suing the sheriff's department to protect this right.
But is this a right? The ACLU argues swearing is not a crime and distinguishes profanity from obscenity. In order for speech to be unprotected under the obscenity exception, it must appeal to a "prurient interest" in sex, as established by Miller v. California. Cases such as Cohen v. California, where an individual wore a jacket reading "Fuck the Draft" inside the lobby of a courthouse, also support the idea that profanity is protected speech. In Cohen, however, the United States Supreme Court noted that individuals could avert their eyes. Police officers cannot necessarily avoid the expression if it is obscenities being yelled at them. Of course, there are also public safety concerns associated with this behavior as well.
Subscribe to:
Post Comments (Atom)
And here it is National Law Enforcement Week! I had to share this post with my husband, an 11 year veteran of the law enforcement community and a media officer for our area, for his insight (and admittedly for my own morbid amusement). He offered to comment on the post himself, but it would probably be longer than mine.
ReplyDeleteI believe there is a difference between language used to express ideas and thoughts and language used to incite or provoke a breach of peace. I don’t think the use or nonuse of profanity is or should be the issue; it is the context and level of threat associated with the situation. Generally disorderly conduct covers behaviors such as fighting, “tumultuous conduct”, and making unreasonable noise and continuing after being told to stop. It is the officer that determines the threshold of that conduct.
Great example of a comparable situation today at our daughter’s (8) soccer game. The father of the family sitting next to us got really passionate about his son’s performance, jumped up, ran over to the line, and yelled something to the effect of, “ GET THAT SHIT” in front of several dozen people of all ages (remember, this is a youth soccer game…and it was loud). Was he expressing his ideas and thoughts or was he being disorderly? Is this different than the guy who flips off officers when he sees them?
(http://www.law.cornell.edu/anncon/html/amdt1dfrag5_user.html#amdt1d_hd16).
http://www.law.cornell.edu/anncon/html/amdt1bfrag3_user.html#amdt1b_hd10
http://www.in.gov/legislative/ic/code/title35/ar45/ch1.html
I remember from other SLIS classes that "obscenity" is actually a very specific legal term, which you allude to in your post. From Lectlaw:
ReplyDelete"For something to be "obscene" it must be shown that the average person, applying contemporary community standards and viewing the material as a whole, would find (1) that the work appeals predominantly to "prurient" interest; (2) that it depicts or describes sexual conduct in a patently offensive way; and (3) that it lacks serious literary, artistic, political or scientific value. "
Obviously, only the most creative traffic-related swearing probably qualifies.
Of course, this is also about what the charge is. The article mentions that there are 750 or whatever disorderly conduct charges related to profanity, but are all profanity cases charged as disorderly conduct? What about profanity used as a threat to another person or a police officer? How exactly does state law define "disorderly conduct" in the Commonwealth of Pennsylvania? Does it say it has to be "obscenity?" Judging from the ACLU's record of overturning these cases, one would expect that there is some insistence upon "obscenity" in the law, but it would be nice to know.
I saw the feature on Comedy Central, too. Although I recognize that this "protest" undoubtedly fits the definition of free speech and as such, support it, I don't really believe this is what Jefferson and company planned on protecting.
ReplyDeleteI know I'm old, but is the only real test of human behavior its legality?
Derek- the statute refers to "obscene speech" or an "obscene gesture."
ReplyDeleteAngela- I think you are right that context is so important and police officers need to have discretion to determine when someone is simply expressing frustration and when someone poses a safety threat.
ReplyDeleteIndividuals have the right to express themselves, but only up to the point where they don’t infringe on the rights of others. Fairness would say that a child should not have to decide not to play soccer in order to avoid being exposed to swear words.
Linda- I think of the law as the minimum standards for behavior. However, I think public opinion still plays a very important role in defining what is and is not acceptable behavior. Yet, sometimes I worry that we are naïve in applying pure First Amendment theory. In the marketplace of ideas, we allow all viewpoints because we trust the best idea will rise to the top and be accepted. But when I go on CNN.com and discover the most popular news story is “Racy photos of Miss USA surface,” I have to wonder if we’re suffering from market failure.
Regarding the soccer game, I will say that had the man done it again, my husband was going to pull him aside and advise him to stop. If he refused or put up a fight, I suspect he would have called someone to have him escorted out-which is consistent with the disorderly conduct statute in our state. Like you said, it infringed upon the rights of others. Arresting someone is a lot of time and paperwork...I'd like to think there's more behind the story than what's in the press release. There are other options for conflict resolution than arrest.
ReplyDeleteI should have my husband post the story of the motorist who flipped him off his rookie year. Or the variety of free speech and expression he observes during Indy 500 season. Maybe I'll dedicate a blog posting to that. :)
Personally, I don't understand the need to be disrespectful of law enforcement officers just on principle; but I also don't believe that people who are voicing their personal opinions, even the one-fingered salute, in a non-violent or non-threatening manner should be arrested for exercising free speech. I spent 6 years working at a state university where the F-bomb was an adjective, I would have preferred they use one of thousands of other adjectives in the English language. I don't think these students should be arrested or ticketing for their lack of creativity.
ReplyDeleteThis reminds me of the expression "My freedom ends where someone elses freedom begins"
ReplyDeleteI believe that the first amendment gave us the right to express ourselves even if that is flipping of the police. However, I would not yell fire in a crowded theather and to some extent that is what you are doing when being disrepectful of cops. Now is ticketing the offender the way to go. Probably not.
But that said person should expect a reaction and be prepared to face the consciences of his/ her actions.