Can I Be Arrested for Swearing at a Police Officer?

Consider this example. A mother calls the police to escort her intoxicated daughter off her property. While encouraging her daughter to comply, she grew concerned at officers’ conduct and criticized them. Though her words were severe, there was no recorded evidence of threatening behavior, but she was arrested and charged with obstruction.

While the mom’s words could be considered offensive or inappropriate, was it illegal? When does speech go over the line? And when is law enforcement’s response a civil rights violation?

The answer begins with the First Amendment, which guarantees our right to free speech. But that’s not where it ends. What are the limits? If you have questions about your specific case, contact an experienced civil rights attorney in your area.

Understanding Free Speech and the First Amendment

The First Amendment to the U.S. Constitution protects freedom of speech. First Amendment rights allow people to express opinions and ideas without government interference, retaliation, or punishment. What you say, what you write, what you wear, or how you protest counts as “speech.”

Freedom of speech protects speech even when it’s considered offensive, hateful, or immoral. However, it does not mean you can say whatever you want under any circumstances.

Disorderly Conduct and Obstruction of Justice Charges

Under the First Amendment, you can generally challenge police action. Speech alone does not typically lead to an arrest or criminal charges, but exceptions exist. Certain categories of speech are explicitly not protected.

Despite constitutional protections, state and local governments can have a unique spin on what constitutes “disorderly conduct” or other violations that can result in an arrest. For example, several states, including Virginia, have anti-profanity laws, making it a misdemeanor to “curse or abuse” anyone “under circumstances reasonably calculated to provoke a breach of the peace.” Some municipalities also have ordinances that restrict profanity within anyone else’s hearing range on any public street or sidewalk.

Legal Protections for Swearing at Law Enforcement

Swearing at a police officer is usually considered unprotected speech if disorderly conduct or a similar claim is involved. The U.S. Supreme Court allows disorderly conduct laws to make it a crime to disrupt public order or disturb the peace by using expletives or offensive language that’s threatening or likely to provoke immediate violence (“fighting words”).

Your location can make the difference in whether you face legal action for your speech. First Amendment protections do not extend to private spaces, such as shopping malls or on the internet (we may think of these as modern-day town squares, but they’re not—somebody owns them, and the owners and operators can establish limits). When gestures or actions perceived as threatening accompany your words, the speech could lose its First Amendment protection.

State Laws and Legal Precedents

Some states use statutes to limit language considered offensive. Statutes or ordinances that cause swearing at a law enforcement officer to become criminal behavior can include the following:

• Disorderly conduct
• Resisting arrest
• Obstruction of justice
• Assault or battery
• Failure to identify
• Disturbing the peace as a vehicle

For example, Texas’ disorderly conduct statute includes using “abusive, indecent, profane, or vulgar language in a public place.” If convicted, a disorderly conduct misdemeanor in Texas may be punishable by a fine of up to $500.

Conversely, the state of Washington has determined that cursing and using abusive language against police is protected speech under the First Amendment and does not constitute sufficient conduct to support a charge of obstructing law enforcement. In State of Washington v. E.J.J., the case referenced in the introduction, the trial court found the defendant guilty of obstruction, and the Court of Appeals agreed, holding that the record supported the trial court’s determination. But the Washington Supreme Court dismissed the matter. The court held that “obstruction statutes may not be used to limit citizens’ right to express verbal criticism, even abusive criticism, at police officers.”

In Florida, courts have found that “mere” yelling or swearing that is loud, belligerent, or annoying does not support a disorderly conduct conviction.

Asserting Your Rights During Police Encounters

Until the U.S. Supreme Court resolves the wide-ranging differences with a clarifying decision, it’s important to be informed about the state and local laws for public profanity, including related disorderly conduct and obstruction laws that can give law enforcement or prosecuting attorneys a probable cause for legal action against you for disruptive or offensive speech.

It can be difficult to distinguish between protected and unprotected speech. Although you have protections under your First Amendment rights, it’s never a good idea to swear at a police officer. They could find that you violated a law that would justify an arrest. Freedom of speech does not protect threatening behavior.

Practical Tips for Interacting with Police Officers

Do your best to avoid unfriendly encounters with police officers. Acting respectfully towards law enforcement during any encounter or traffic stop is wise. Where the heat of a charged moment can give way to conflicting recounting of events, it’s beneficial to create a recording. That way, if there’s a situation involving police misconduct, you will have an objective witness. Remaining calm and complying with police requests is critical. But you can’t always control how things will go, and if it comes down to a test of memories, having a record can help to verify what occurred.

Find Legal Help

If you are prosecuted for one of these charges based on something you said, talk to an attorney familiar with the interplay of criminal statutes and your civil rights. Most law offices will provide a free consultation to evaluate your claim and help you determine your next steps.