Attorney for man charged with cursing blasts 101-year-old law

Tuesday, December 29, 1998

The attorney for the Michigan man facing criminal charges for cursing after falling out of a canoe says the law under which his client has been charged clearly violates the First Amendment.

“I have never seen a law that so squarely conflicts with the text of the First Amendment,” Bill Street, attorney for 24-year-old Timothy Boomer, told said:

The law enacted in May 1897 provides: “Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.”

Boomer was ticketed by a deputy during an August canoe trip on the Rifle River in Arenac County for using foul language in the presence of a woman and child.

He faces up to 90 days in jail or a $100 fine for his words.

Street, who is working as a cooperating attorney for the American Civil Liberties Union of Michigan, filed a 31-page motion to dismiss earlier this month.

“It is my position that there should never be a trial in this case,” Street said. “Instead, the judge should declare the law unconstitutional in this day and age.”

Tom Schram, director of public education for the Michigan ACLU, agreed, saying: “This archaic law is clearly unconstitutional and represents the mores of a different century.”

Street argues that the law is unconstitutional because it is both vague and overbroad. “My position is that this law is equivalent to the Legislature making it a crime to possess a printing press or to say the Roman Catholic Mass. The First Amendment does not allow such flagrant violations of free speech, press or religion,” he said.

Street says that almost 20 years ago he successfully defended a man from Tuscola County who was charged under the law for swearing in front of his wife. The judge in that case found the law unconstitutional, Street said.

However, a federal court for the Western District of Michigan ruled in the 1990 case Prak v. Gregart that “it is possible for a Michigan [state] court to find that the statute's coverage is limited to 'fighting words' which do not enjoy First Amendment protection.”

In the 1942 case Chaplinksy v. New Hampshire, the U.S. Supreme Court created the so-called “fighting-words” exception to First Amendment law. However, the fighting-words doctrine usually applies only to face-to-face words intended to incite the listener to violence.

“The Boomer case doesn't even trigger the fighting words doctrine, because it is not a genuinely violent face-to-face encounter such as that which occurred in Chaplinsky,” Street said. “There is no victim in this case.”

Street also pointed out that when the Prak case was sent back to state court, a Kalamazoo County Circuit Court judge ruled the law unconstitutional.

Street says the law comes from a time in American society when women were viewed as fragile. In fact, the federal district judge in the Prak case noted that the construction of the law represents “the result of an outmoded state paternalism toward women.”

However, Arenac County assistant prosecutor Richard Vollnach says the law is constitutional.

“The fact that the law is 101 years old does not mean it is a bad law,” he said “I believe the Constitution is a few years older than that.

“Mr. Boomer was not expressing an idea; he was screaming profanities,” Vollnach said.

A hearing has been set in the case for Jan. 25.