On Feb. 14, 2011, a mother called police officers to her home to escort her intoxicated daughter off her property. The girl’s brother, Jordan, observed as police brought his sister outside. Jordan encouraged her to comply with police but, as one of the officers unsheathed a nightstick, he grew concerned for her wellbeing and began to criticize their conduct. Though Jordan’s words were severe, there was no recorded evidence of threatening behavior. He was arrested and charged with obstruction.
Jordan’s behavior may be viewed as offensive, inappropriate or ill-chosen, but was it illegal? When does speech go over the line? And when is the response by law enforcement over the line?
The answer begins with the First Amendment, which holds sacred our right to free speech and expression, a cornerstone of our democracy. But that’s not where it ends. Yes, we have a lot of latitude to say crazy, outrageous, offensive, stupid things, and no police officer has the right to intimidate us or deprive us of our liberty. However …
There are categories of speech that are explicitly not protected. These free speech exceptions may be deceptively easy to tick off on a list, yet confoundingly nuanced in how they are applied. Often, it can come down to interpretation. And despite federal constitutional jurisdiction, states and even local municipalities can have their own spin on what constitutes “disorderly conduct.” Where you are can make all the difference whether you can be legitimately arrested and charged.
There have always been recognized limitations on speech. Generally, you cannot make statements that incite illegal activity or imminent violence (“fighting words”), and it is acceptable for laws to restrict speech considered obscene, defamatory, or creating a foreseeable risk of harm. As you can imagine, there’s a lot of grey area. Further, not only what and how you say something, but where is critical.
The shelter of the first amendment does 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 can establish their own limits). And when your words are accompanied by gestures or actions perceived as threatening, the speech itself is no longer protected by the First Amendment.
Anti-Profanity, Obstruction, and Disorderly Conduct Laws
Local laws and cultural standards may support broader limitations on expression. For example, several states have anti-profanity laws on their books, including in Virginia
, where it’s a misdemeanor to “curse or abuse” anyone, “under circumstances reasonably calculated to provoke a breach of the peace.” Within that state, local municipalities such as Rockville go further to restrict profanity within hearing of any other person on any public street or sidewalk.
Similarly, some states use statutes regarding disorderly conduct or disturbing the peace as a vehicle to limit language considered offensive. For example, Texas’ disorderly conduct statute includes using “abusive, indecent, profane, or vulgar language in a public place.” If convicted, a Texas disorderly conduct misdemeanor 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 mentioned at the start, the Washington Supreme Court dismissed the matter, stating 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 is not enough to support a disorderly conduct conviction.
On the Record
So, what’s a law-abiding-but-outspoken citizen to do? The U.S. Supreme Court may one day resolve these wide-ranging differences with a clarifying decision. Until then, it’s important to be informed about the laws in your own state on public profanity, including related disorderly conduct and obstruction laws that can give law enforcement a platform for prosecuting disruptive or offensive speech.
Where the heat of a charged moment can give way to conflicting recounting of events, it can be a good idea to create your own recording should you find yourself in an altercation with police. Of course, it’s best to remain as calm as possible and comply with police requests. 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 was actually said and/or gestured.
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