Remember profanity isn’t always protected speech

The First Amendment often protects the profane word or phrase — but not always.

The First Amendment protects a great deal of offensive, obnoxious and repugnant speech. As Justice John Marshall Harlan wrote 40 years ago in Cohen v. California, “one man’s vulgarity is another’s lyric.” In that decision, the Court ruled that an individual had a First Amendment right to wear a jacket bearing the words “Fuck the Draft.”

So a general law that prohibits all profanity will run into serious First Amendment hurdles, as recognized this week by the suburban Chicago city of Park Ridge, Ill. Perhaps in the spirit of the Cohen ruling, the city rid its books of a law that made it illegal to use profanity on streets, alleys and other public places. The police chief of the suburb told the Associated Press that free-speech concerns formed part of the reason for erasing the law.

Park Ridge’s move has much to commend it. But people shouldn’t mistakenly believe that the First Amendment always protects profanity. It doesn’t.

Certain categories of speech are not entitled to First Amendment protection, including fighting words, true threats and incitement to imminent lawless action. If a person engages in profane fighting words or utters a true threat with profanity, those words may not be protected speech.

Likewise, a speaker who uses profanity to stir up a crowd to immediate lawless action (like a riot) may have crossed the line from protected speech into unprotected incitement.

Furthermore, though you may have a right to curse on the street, don’t assume you have a right to curse at your public employer or at your public school. Context — as well as content — is important in First Amendment law. The government has greater power to regulate speech when it acts as employer or educator than it does when it acts as sovereign.

6 thoughts on “Remember profanity isn’t always protected speech

  1. Where does the first amendment weigh in when teens are at a children’s park loudly yelling out all kinds of f-bombs as well as the P word, the N word… When asked to stop they just get worse. We can’t bring our children there anymore. what are the legal ramifications herein?

  2. Yes, you are correct. Fighting words was a doctrine that evolved around the 1940s in Chaplinsky v. New Hampshire, which made speech that was de facto harmful or that would incite the other person to violence unprotected by the 1st Amendment. However, it’s never been upheld by SCOTUS since this case. They’ve used the vagueness doctrine and strict scrutiny because of content-based restrictions to overturn a fair few statutes. State courts also don’t look very kindly on the fighting words doctrine–though some have started to use it in the context of adolescent speech. You’re also correct on the classist divide. There are some pretty pointed law review articles that cover this topic.

  3. There seems to be some confusion here: Wouldn’t threats, incitement to illegal action, or “fighting words” be a legal problem regardless of whether or not profanity is used? “Fighting words” seems to be a vague term: Is it something along the lines of a dare, implying the other person will be taken advantage of or demeaned unless they engage in physical confrontation? “Profanity” seems to be a concept very rooted in class divisions. Words common among the less economically advantaged or the disenfranchised young seem to be viewed almost as a crime by more privileged classes. Sadly, it almost seems that some of my privileged peers use this cultural difference to justify a lack of compassion on their own part.

  4. My landlord first served me a demand for compliance or possession citing that I violated my lease by using profanity; this was followed hours later with a notice of intent not to renew my lease. Earlier in the same month I’d signed an agreement to increase my rent monthly. Does this lease agreement provision in general violate my right to freedom of speech. Do these two notices suggest an element of vindictiveness and retaliation?

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