Fighting Words

• Author: David L. Hudson Jr.
• Pages: 18-19

Fighting Words

Can anti-profanity laws and the fi ghting words

doctrine be squared with the First Amendment?

By David L. Hudson Jr.

In an age of declin-

ing civility a nd ampli-

fi cation of offensive

speech via socia l

media, it may seem

strange, un-Americ an

or downright silly for people to be

arrested for utt ering profane speech.

But it happens.

People can, and have been,

arrested for utt ering profanity in

public, cursing in a canoe, engag ing

in a toilet tirade in thei r own home,

or cursing near a school or church.

Anti-profanity laws rem ain on

the books in some states w ith stat-

utes that in many ca ses are relics of

a bygone era, dating back to t he 19th

century but never erased . A 1962

South Carolina law prohibits cur s-

ing on a public highway or within

hearing dista nce of a church or

school. A Mississippi law, passed in

1848, prohibits using profane or vul-

gar language in t he presence of two

or more people. Those in violation

can receive a $100 fi ne or up to 30

days in county jail. A R hode Island

law, enacted in 1896, provides that:

“Every person who shall be g uilty of

profane swearing and cu rsing shall

be fi ned not exceeding fi ve dollars

($5 .00) .”

“In my opinion, laws banning

profanit y are unconstitution al on

their face,” says Jennifer Kinsley,

who teache s First Amendment law

at Northern Kentucky University ’s

Salmon P. Chase College of Law. “The

sole justifi cation for these laws is

morality-based, wh ich the Supreme

Court has held insuf fi cient to justif y

laws regulating f undamental rights.”

How can anti-profanity laws b e

considered constitutional in t he wake

of the U.S. Supreme Court’s famous

decision in Cohen v. California

(1971), where the court reversed

the breach- of-the-peace conv iction

of Paul Robert Cohen, who wore a

jacket with the messag e “Fuck the

Draft” into a L os Angeles county

courthouse? Justice John Marshall

Harlan II began his opinion w ith

these words: “This ca se may seem at

fi rst blush too inconsequential to fi nd

its way into our books, but the issue

it presents is of no small constit u-

tional signifi cance.” He also fa mously

wrote that “one man’s vulgarit y is

another’s lyric” and war ned that

government offi cials might ban

particula r four-letter words as a

way to silence particu lar viewpoints.

The reason why such laws are

sometimes c onsidered constitution al

is the fi ghting words doctrine—words

that the Supreme Court defi ned in

Chaplinsky v. New Hampshire

(1942) as “words which by their

very utterance in fl ict injury or c ause

an immediate brea ch of the peace.”

Walter Chaplinsky, a Jehovah’s

Witness, was convic ted of breach

of the peace for cursing a ma rshal.

The high court unanimously

upheld his convic tion, writing t hat

fi ght ing words “are of such slight

social value as a st ep to truth that

any benefi t that may be derived from

them is clearly outweighed by the

social interest in order a nd morality.”

IN YOUR FACE

In later decisions, the court

narrowed the doctr ine by limiting

it to direct, fa ce-to-face personal

insults and by constr uing such laws

narrowly to only fi ghting words. For

example, in Cohen, the c ourt pointed

out that the man did not direct t he

message on his jacket to any pa rticu-

lar individual. Justic e Lewis Powell

also explained in a c oncurring opin-

ion in Lewis v. New Orlean s (1972)

that speech direc ted to police offi c ers

may not rise to the level of fi ghting

words because offi cers r eceive special

which it’s appropriate—and legal—

to use lethal force, he says. For

example, in January in Toledo,

Ohio, an offi cer who was attacked

repeatedly by a dog while tr ying to

evacuate a house during a fi r e shot

and killed the dog.

But Crosby says he feels confi dent

that by helping police offi cers learn

how to interpret dog behavior

and practice nonletha l manage-

ment techniques, he can reduce

the number of killings. “Most of fi -

cers don’t want to shoot dogs,” he

says. “To most of us, pets are fam-

ily. Protecting them while aidi ng law

enforcement is essential.”

THE COST OF BRUTALITY

John Thompson, deputy executive

director of the National Sher iffs’

Association—who is recogni zed as

a leader in bringing concern s about

animal welfar e to the law enforce-

ment realm—says he is hopeful

that the training cu rriculum will be

warmly welcomed, at lea st in part

because of large judgments l ike the

one for Vern’s shooting.

“Pets are people’s families now.

The courts are st arting to realize it,”

he says, adding that even wit h all

the incentives in place, he ex pects

change might not come quickly

enough. “I have this feeling and

fear there’s going to be a lot more

shootings before we can get the

training out.”

Hansel of Baltimore says he’s opti-

mistic that the judgment in Vern’s

case, along with ot her large awards,

will help lead to more tra ining and

fewer shootings. “Unwarranted

police violence has its root s in the

same place, whether the vic tim is

an innocent person or an innoc ent

animal,” Hansel says. “Until socie ty

raises the cost of police br utality and

punishes it appropriately, it will con-

tinue to affect a ll of us—those we

care about and even our pets .”

Reeves says that for his fam ily,

their lawsuit was never about money,

although a la rge judgment sends

the strongest possible message that

police offi cers need serious training

so that other dogs do not get killed.

“There are steps th at should be

taken so it doesn’t happen in the

future,” he says. Q

National

Pulse

The Docket

18 || ABA JOURNAL APRIL 2018