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.

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

  1. After wasting one hour on a government website that was INCORRECTLY changing my password and not sending the second email that was supposed to GIVE ME the new password, I sent an email asking “what the f**k?”

    Then I called and spoke to not 1, but 2 “tech support” employees and THEY couldn’t send me the 2nd email with my new password. The 1st one came through, stating that my password changed, & after a dozen attempts between trying myself and having the employees try, I STILL don’t have the password so I can’t get a job as a security guard. I received ANOTHER EMAIL telling me that “my language is inappropriate and will be recorded in my file.”
    Can they deny me simply for asking “what the f**k” regarding the gross incompetence of their webmaster. They let former criminals who have “been rehabilitated“ become security guards, but even with my squeaky clean record, I have a feeling these snowflakes will deny me.

  2. Our founding fathers showed us that the people control the gov, not the other way around. The small gov they established had the job to protect and serve the people. Now it has grown into big gov making up their own laws, controlling how people live, what they say, censoring on social media, violating constitutional rights, etc. The list goes on. When they are violating our constitutional rights it is our job to call them out for it. People saying to just follow the laws and do the gov’s bidding are slaves. If our founding fathers had done that, America would not have become independent and we would be controlled by Britain. They told the American people to educate themselves and that is exactly what we should be doing. Too many people are brainwashed and trying to control others based on what they think is right. People have the right to life/liberty and the free will to make their own choices. That free will is a god given right which trumps any gov “law.”

    • Such a fine line between Freedom of Speech and Profanity on yard signs. Google, “Profanity signs in Dandridge Tennessee” You will see my Street. The signs are filled with F and B words toward the 78 yr old Neighbor, now they have signs directed at everyone on our Street. Its a dead end Street, one way in and out, no way getting around this, including the School Bus. 6 weeks now, and they are still adding more signs. I have contacted our Tn. State Rep. Our US representative, and I intend to keep going up on the Ladder till somebody can find a way to help us. It is distressing our Neighborhood emotionally and financially. They are now verbally threatening another Neighbor and threatened to shoot her Horse. The Police are on our street 2-3 times a week now. This behavior should not be protected under any Law.

  3. im going to be honest my friends were hovering some jello pea thing over me while holding me and i accidently screamed “Get that shit away from me” four letters. FOUR. and for in my opinion a good reason to curse. ive never cursed before and have a good record yet somehow my teacher writes me up for a 4 letter word that was not offending anyone. that is unless you consider a cocacola can filled with Peas, Jello and other stuff a person that can get offended. on top of that everyone in ear shot has cursed and i know that my teachers in a fit of rage had cursed. especially at my age. when you become a teacher apparently you forget your mistakes as well.

    • The use of 1ST AMENDMENT rights for Total Freedom
      of Speech is not a a guarantee , but it has a great record. If the signage is threatening , meant to incite, meant cause harm or cause the physical harm, to anyone, then you have a no
      Cursing , swearing, profanity can be used in most cases as we know, until it gets to , “and not to be redundant” as the above paragraph.

  4. 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.

      • One thought I have is that if anybody does not want people to use profanity, why don’t they eliminate the social conditions for the possibliity of the use of the words as profanies having a referent and then nobody would have any reason to use words that way and consequently the words would likely vanish for lacking any use. Might some people actually like people to use profanity to give themselves opportunities to be self-righteously offended? Prudes and prigs.

        • What are you talking about? Eliminate the things that make people use profanity? Is life just that predictable? We have that much control of our circumstances?

      • I suggest you review what happened in Rwanda as a result of DJs using hate speech. 900,000 DEAD.
        First they dehumanized those people calling them cockroaches. Then they encouraged their extermination.
        There’s a reason you aren’t allowed to scream fire in a crowded theater.

    • So if I wave a flag reading f*** little children or put a 10 ft penis and vagina in my yard, that’s cool?👍 freedom of speech and all. Who cares about the children who are old enough to read.

      • We have a neighbor with a F**k Biden flag on their property which is a near a school. They also have a houseful of young children there. Thoughts

        • I have the identical situation. It shows what an ignorant person put it up but it on a very public, busy street for all to see. Is there any recourse?

          • Beverly, same issue with Profanity on our Street. Ours is signs on their fence directed toward a neighbor that is a 78 yr. old widow. There’s so much ignorance out there. Nothing can be done. Freedom of Speech on private property. Its horrible, and until you are the victim of it, you have no clue how it can turn a Neighborhood upside down.

        • If the sign is meant to incite riot or malicious mischief, yes, it is illegal.
          If the sign contains a threat , such as “I’ll F you up, Dems”
          yes, it is illegal
          If the sign is within 10-20 feet of a roadway , Yes, it is illegal
          (which is typically town or state property…contrary to popular belief the town or state typically owns 3-4 yards of grass/gravel off the road)

          • Hello Genna – where can I find this law written?
            “If the sign is within 10-20 feet of a roadway , Yes, it is illegal (which is typically town or state property…contrary to popular belief the town or state typically owns 3-4 yards of grass/gravel off the road)”

        • Can’t protect your children from everything and everyone. There are going to be things that they’re going to say that you don’t approve of. All you can do is teach them what’s right and what’s wrong. Nothing ignorant about this. Having a strong opinion and being educated about some thing does not make one ignorant. You are the problem with this country and why they’re taking everyone’s rights away.

          • This was well said up to the “your the problem” part. Finger pointing and “no you” mentality could also be argued to be part of the problem. So this beautiful intelligent comment went from smart to drivel. A full 180. You show promise. Just do better.

      • Would you actually do that or are you just making up a ridiculous situation to make a point? I doubt you would and most people wouldn’t do that. Also, our ancestors used to walk around naked, and some people still do in other countries. Do children just not see it? I doubt it, but it is their common way of life. Does that mean it’s wrong? Not necessarily. They probably don’t sexualiza everything like America has been doing through the media. What the media is doing to our children is terrible, yet they are doing it and people want to ignore that and focus on more ignorant things like what someone says.

  5. 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.

  6. 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?

          • Yours is the essential question Will – and none of these keyboard free speech warriors will respond. No “right” is absolute. Societies decide all the time what the parameters of “rights” are. Beyond free speech, F**k Biden is a political statement. Most jurisdictions during election seasons have limits on the size of, when, and for how long political advertising can be displayed in people’s yards.

        • If there are limits to words that are intended to “insight”; which I believe is the purpose for a “F—k Biden” flag on the closest lake front for all boaters to be forced to see; shouldn’t we have the right to ask it to be removed?

          • Freedom of speech protects reasonable expression. There is a legal concept called the Miller Test (references a 50 yr old court case Miller v. California (1973)…The “F word” is unprotected if “the average person, applying contemporary community standards, would find that the [subject or work in question], taken as a whole, appeals to the prurient interest”–in other words, if the average person finds it disgusting/unacceptable, it is. The average, reasonable person is able to distinguish the difference between a one-time utterance of the f word (in disgust, anger, or pain), and the 24/7 broadcasting of it in a sign.
            Your example is not protected speech.

          • The rights of the doucebags mean more than ours. The good person has no rights any longer as every loophole has been exploited by bad people.

    • 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.

    • You nailed it, there’s no respect anymore. That is the root of the problem with this country. Freedom of Speech=Right to be an a-hole.

  7. 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?

  8. 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.

        • “We need to teach our children to be respectful and considerate of others and to use language that shows that respect.”

          The problem in that statement is I have lost all respect for half of America, I have zero tolerance for their hatred any longer. So If I wanted to shout a 10 paragraph diatribe to them, it should be protected.

      • 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.

      • I propose your response, “FLARN2006,” is part of the problem. Your platform is that it’s good for others to be desensitized? That will make it better?

        Desensitizing is how “predators” groom their victims. Sexual predators start in small steps to desensitize their victims, teaching them that it’s “ok.” Do you think it’s ok? Desensitizing is another way to force unwanted “things” on others regardless of their rights or beliefs.

        One definition of desensitize: “make (someone) less likely to feel shock or distress at scenes of cruelty, violence, or suffering by overexposure to such images.”

    • 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.”

  9. 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).

  10. 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.

  11. 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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