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.

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

  1. This is supposed to be a website that supports freedom and the First Amendment, and yet so many people in the comments are being triggered by 4 letter words and want to control people’s speech.

    • I agree. I don’t care if someone offends me. Each has to be responsible for his or her own emotions and actions. I’m not being hurt by someone cursing or calling me names! Sticks and stones…. What happened to the Constitution that words can be illegal?!?!?!? That needs to be overturned. Ridiculous.

  2. I hear in certain towns, such as Virginia Beach, VA and Rockwell, MD, profanity is prohibited in public places and they actually issue fines for using it. If profanity is protected free speech in most cases, how can these local governments enforce such laws? Isn’t this a violation of The Constitution? Has anyone challenged these laws in court?

    • The Virginia Beach ordinance that prohibited profanity at the oceanfront was overturned by the Virginia legislature. It was their poor attempt at creating a family-friendly Beach which resulted in mostly those of us who lived in Virginia Beach going to the outer Banks and many of the other people going to Myrtle Beach instead of Virginia Beach.

  3. This is exactly why we are living in the society we are right now. Everyone is solely worried about themselves and could care about respect. If President Kennedy said today, “Don’t ask what your country can do for you, but what you can do for your country,” the young generation today would laugh. It’s all over the news, the gov should do this, that, and another. It seems few were raised to respect others, their beliefs or needs. They are only thinking about themselves like the teenager cussing in front of the children. Parents are trying to teach respect and there is a time and place for cussing. However, a public park isn’t one of them. Your right to free speech isn’t any more important than the parent’s right to raise their kids how they want, or another persons right to listen to birds chirping. Respect others and you get it back in return. You also can demand it for yourself. Self-respect – that seems to have disappeared too!

    • The Constitution protects profane language in most instances, but it doesn’t protect your right not to hear it. We have too many snowflakes out there that get offended by anything and everything!

      • I think profanity should be protected under the first amendment because what your talking about is a matter of taste and not law. F**k and s**t are just words. Bad taste should not be illegal.

        • Ok, so can I put a big sign on my home’s roof that can easily be seen from the street, down the street and beyond, that says “F**k You”?? Is that acceptable?

    • You’re on a website called “freedomforuminstitute” yet don’t even believe people have the freedom to use the word “f**k” in public. This is why the right is so hypocritical.

  4. I am not an attorney but I believe your landlord is likely within his rights. As a private party he can make certain rules and conditions as long as they respect protected categories like race religion etc. The First Amendment protects you from actions by the government not from private parties.

    • You cant just make up rule as you go though, theres a lease you signed but if it’s not in there already can he really do something?

  5. 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?

      • I wholeheartedly disagree with your assessment. Soldiers are desensitized to violence so they can kill without remorse. Becoming desensitized to vulgar language will not make for better people it only draws society down. We need to teach our children to be respectful and considerate of others and to use language that shows that respect.

        • The flaw in your argument is that killing is intrinsically bad. “Vulgar language” is not intrinsically bad and is a matter of taste. I think you’re comparing apples to oranges here.

      • I absolutely agree with your perspective. All words have meaning but giving too much power to certain words can have an adversely harmful effect. In many cases, a word only has as much power as you give it. Creating the idea that there are “bad words” and “good words” is merely a superstition. Don’t listen to these prudes, they are obviously too caught up in their old ways to enter the 21st century.

    • Because the first amendment is very clear? The right to freely express yourself is more important than someone getting offended. Same reason “hate speech” is protected. And the n-word is far worse than “f**k.”

  6. 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.

    • In Terminiello v. Chicago, 337 U.S. 1 (1949), the Supreme Court narrowed the scope of what constitutes fighting words. The Court found that words which produce a clear and present danger are unprotected (and are considering fighting words), but words which invite dispute and causes unrest are protected (and are not considered fighting words).

  7. 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.

  8. 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?

    • I think, unless it’s in your lease they can’t evict you for profanity. But they do reserve the right whether they renew your lease. If it were me, I’d make them try to evict me instead of just leaving before the end of my lease if there’s nothing in your lease about profanity. I’m not a lawyer, just voicing my opinion. I’d do it simply to stand up for my rights. If your lease is month to month, then you most likely have no recourse and it could cost you money. But if it’s a yearly lease, they’d be taking me to court to evict me. If they used the profanity reason, I’d ask a lawyer if I could sue them for violating my rights.

    • As far as I see this is legal as long as that was in your lease that you signed. However, it’s ridiculous a landlord would kick you out for that.

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