Aggressively Defending My Clients Since 1990


On Behalf of | Apr 22, 2018 | Firm News

In the 1996 film Happy Gilmore, Adam Sandler plays Happy who is a down and out hockey player who puts his skills to the golf course to save his grandmother’s house.  Christopher McDonald plays Shooter McGavin, an arrogant golfer who is one of the top stars of the Pro Golf Tour.  On the tour, Gilmore meets professional golfer Shooter McGavin, who sees Gilmore as bad for golf and a threat to his career.  Inevitably the two lock horns and the following argument happens:

Shooter McGavin: [after buying grandma’s house in an auction] You’re in big trouble though, pal. I eat pieces of shit like you for breakfast!
Happy Gilmore: [laughing] You eat pieces of shit for breakfast?
Shooter McGavin: [long pause] No!

Such offensive profanity and vulgarity cannot be tolerated in America.

On the contrary.  Allowing such speech is considered a bedrock principle underlying the First Amendment.  Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  Texas v. Johnson, 491 U.S. 397, 414, 1989.

It is “often true that one man’s vulgarity is another’s lyric.” and that free speech involves not only responsible speech but the right to speak foolishly and without moderation. Cohen v. California, 403 US 15, 25-26(1971); Baumgartner v. United States, 322 US 665, 673-74(1944).  Thus foolish, vulgar statements, are protected speech. This is because the First Amendment must forever be seen as “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks which can contain language which is often vituperative, abusive, and inexact.”  Watts v. United States, 394 U.S. 705, 707-08 (1969).

After all, even presidents like to use the word “shit.”  Remember back in 2006 at the G-8 summit meeting as conflict heated up between Israel and the Lebanese terror group Hezbollah, a microphone picked up a candid moment between George W. Bush and British Prime Minister Tony Blair. Syria, Bush told Blair, should tell Hezbollah to “stop doing this shit.”  As the president himself demonstrated, shit and its variants are political speech. If Bush had told Tony Blair at the G-8 meeting that Syria needed to get Hezbollah to stop this “humbug” or this “no-no,” it would have lost impact. How can you talk politics without these words? Isn’t calling bullshit on politicians the essence of free speech and reason in a democracy?

The Michigan Court of Appeals considered a case involving that state’s anti-profanity law. Timothy Boomer was canoeing down the Rifle River in Michigan when he struck a rock, and was thrown overboard. Boomer began to curse persistently in such a loud voice that a police officer claimed to have heard him from a quarter-mile away. A man in a nearby boat testified that he, his wife and two young children were so appalled by the profane speech that they hurried away. The police officer ticketed Boomer, citing him for violating a more than 100-year-old Michigan law that criminalized the use of profane language in front of women and children.  People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002).  The Michigan Court of Appeals threw out Boomer’s conviction and overturned the Michigan law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to hold that the law violated the First Amendment’s guarantee of free speech and that it would be “difficult to conceive of a statute that would be more vague.”

Surely when profanity is directed at law enforcement it is not protected speech. Actually, the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.  Speech is often provocative and challenging, but it is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.  City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987)

In State of South Dakota v. Suhn, 2008 SD 128 (SD 2008) the South Dakota Supreme Court protected the speech of a man who yelled the following at a passing police cruiser as the bars let out around 2 a.m. in Brookings: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” In ruling for Marcus J. Suhn, the court wrote that “just because someone may have been offended, annoyed or even angered by Suhn’s words does not make them fighting words.”  See also, City of Bismark v. Schoppert, 469 N.W.2d 808 (North Dakota 1991) (defendant who referred to police officer as “fucking, bitching cop,” and replied “fuck you” to an officer’s request for identification could not be convicted of disorderly conduct.)  In Merenda v. Tabor, No. 12-12562, Non-Argument Calendar (11th Circuit 2013) held that the use of a barely audible “fucking asshole” to a law enforcement official was not fighting words and was, instead, protected by the First Amendment.  In Duran v. City of Douglas, 904 F.2d 1372, 1377-78 (9th Cir.1990), the Ninth Circuit held that a police officer’s stop of a car from which the appealing defendant was making obscene gestures and yelling profanities at the officer was unlawful because the defendant’s actions were protected by First Amendment.  In Brockway v. Shepherd, 942 F.Supp. 1012 (M.D.Pa.1996), the court found that a passenger in a car who extended “his middle finger” at a police officer did not engage in obscene conduct under the Commonwealth’s disorderly conduct statute. See id. at 1016-17.  Likewise, in Wisconsin, in State v. Smith, 2013AP2516-CR a defendant was charged with disorderly conduct and with unlawful use of a computerized communication system because he posted two comments on a police department Facebook  page that read:

Fuck  the  fucking  cops  they  ant  shit  but  fucking  racist basturds an fucking all of y’all who is racist[.]
Fuck them nigers policy bitchs wat the you got on us not a darn thing so fuck off dicks[.]

Judge Paul Lundsten agreed with Smith and threw out the convictions. Specifically, the judge determined that Smith’s language did not constitute “fighting words” since they were vague, not made to a person’s face and did not produce imminent lawless action.  Similarly, when a passing motorist shouted “sooey” to a police officer, he did not violate the statute because there was “no direct face-to-face contact or other exigent circumstances.” Garvey v. State, 537 S.W.2d 709, 711 (Tenn.Crim.App.1975); see also Matter of Welfare of S.L.J., 263 N.W.2d 412, 420 (Minn.1978) (when young girl shouted obscenity to police officer who was standing fifteen feet away “rather than eye-to-eye, there was no reasonable likelihood that [the words] would tend to incite an immediate breach of the peace or to provoke violent reaction by an ordinary, reasonable person”); Hershfield v. Commonwealth, 14 Va.App. 381, 417 S.E.2d 876, 877-78 (1992) (when one neighbor shouted obscenity to another, “distance and barriers” precluded an immediate breach of the peace).

[The idea that the government may restrict] speech expressing ideas that offend … strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”  Matal v. Tam, 582 U.S. ___ (2017) (provisions of the Lanham Act’s prohibiting the registration of trademarks that may “disparage” persons, institutions, beliefs, or national symbols violates the First Amendment), aff., In re Tam, 808 F.3d 1321 (Fed. Cir. 2015).  It simply is not the government’s role to decide what language is acceptable and what language is not. That is for the marketplace of ideas to decide.  As Justice Jackson told us, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”  West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).  In the end, it must be understood that the way to expose falsehood and fallacies is more speech, not enforced silence, since freedom to think as you will and to speak as you think are means indispensable to American democracy.  Whitney v. California, 274 U.S. 357, 375 (1927), Brandeis, J., concurring.