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.

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

  1. 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!

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

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