Profanity & the First Amendment

Wednesday, May 2, 2007

The origins of the term “profanity” can be traced to the influence of religion in various cultures around the world. The original meaning of “profanity” was restricted to blasphemy. “Blasphemy” was an offensive attack on religion and religious figures, which included swearing in the name of God. As centuries passed, profanity became more distinct from blasphemy. Although blasphemy still refers to language that defames God, a religion or a religious figure, profanity has evolved to include expressions with vulgar, racist and sexual themes.

Obscenity and blasphemy laws in the United States were originally meant to prohibit attacks on religion and religious figures or to protect children from profane speech.

In recent years the Michigan Court of Appeals considered a case involving that state’s anti-profanity law (People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002)). Timothy Boomer was canoeing down the Rifle River in Michigan when he struck a rock, and was thrown overboard. Boomer began to curse persistently in such a loud voice that a police officer claimed to have heard him from a quarter-mile away. A man in a nearby boat testified that he, his wife and two young children were so appalled by the profane speech that they hurried away. The police officer ticketed Boomer, citing him for violating a more than 100-year-old Michigan law that criminalized the use of profane language in front of women and children.

The Michigan Court of Appeals threw out Boomer’s conviction and overturned the Michigan law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to hold that the law violated the First Amendment’s guarantee of free speech and that it would be “difficult to conceive of a statute that would be more vague.”

The “cussing canoeist” is just one example in a wide variety of First Amendment cases involving profanity. The general principle is that profanity is protected under the First Amendment. There are situations, however, when profanity is punishable.

When profanity is not protected by the First Amendment

Fighting words
The U.S. Supreme Court ruled in 1942 in Chaplinsky v. New Hampshire that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are prohibited and are not protected by the First Amendment. Almost 30 years later in 1971, the high court limited Chaplinsky in Cohen v. California by holding that an individual could not be held criminally liable for wearing a jacket into a courthouse that said “Fuck the Draft.” The Supreme Court distinguished the two by explaining that Cohen’s action was a “simple public display” as opposed to a direct insult or intent to incite harm, as was the case in Chaplinsky. (Also see Fighting words section.)

True threats
Another form of speech that is not protected under the First Amendment is “true threats.” The courts have defined “true threat” as a threat that involves statements with serious expressions of an intent to commit an act of violence to an individual or group of individuals. The Supreme Court has also labeled a true threat as a real threat to one’s personal safety (Watts v. United States, 394 U.S. 705 (1969)).

Profanity in various contexts

Public schools
Public schools have vast discretion in controlling what type of language can and cannot be spoken on school grounds. In the 1986 case of Bethel School District No. 403 v. Fraser, a student used explicit sexual metaphors in nominating a fellow student for a position in student government. The public school officials suspended the student for his behavior. Chief Justice Warren Burger wrote:

“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. … Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. … The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board” (emphasis added).

The Court affirmed that the school board of a public school has the authority to decide when and to what extent profanity and other obscene language may be punished without violating a student’s First Amendment rights.

Military legend Gen. George Patton once said:

“When I want my men to remember something important, to really make it stick, I give it to them double dirty. It may not sound nice to some bunch of little old ladies at an afternoon tea party, but it helps my soldiers to remember. You can’t run an army without profanity; and it has to be eloquent profanity. … Sometimes I just, by God, get carried away with my own eloquence.” (The Unknown Patton, by Charles M. Province, CMP Productions, 1998)

Currently, there is no “bright-line” rule governing profanity in the military. Sometimes, as the above quote from Patton illustrates, profanity can be an integral part of a commander’s leadership style. In an article in the January 2006 issue of Combat Magazine,Taking Aim at Commo: The Basics of Profanity,” Beth Staas said drill instructors often “use profanity to increase the stress-levels of recruits.” She added that “military jargon and profanity could make the incoming GI part of an in-group, a necessary conviction on the battlefield.”

At times, however, using profanity could land members of the military in hot water. The Uniform Code of Military Justice is the main governing body of law for the military. Although profanity is not directly mentioned in the UCMJ, Articles 117 and 134 govern such language. Section 917, Article 117 states: “Any person subject to this chapter who uses provoking or reproachful words or gestures towards any other person subject to this chapter shall be punished as a court-martial may direct.” Section 934, Article 134 states: “Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces … shall be punished at the discretion of that court.” One court has held that the mere use of profanity that a listener finds offensive does not constitute an offense under Article 134 (United States v. Herron, 39 M.J. 860 (N.M.C.M.R 1994)).

Articles of the UCMJ have been challenged on First Amendment grounds numerous times. In 1974, the Supreme Court examined several articles (including Article 134) in light of the First Amendment and held that the First Amendment takes on a different character when it is applied to the military. Justice William Rehnquist, in his majority opinion in Parker v. Levy, wrote:

“While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside of it.”

The principal purpose of military justice is to give those in authority the tools to enforce and maintain good order and discipline among military personnel.

A recent example involving the military and profanity arose in April 2007 when a high school senior and U.S. Marine hopeful was arrested and charged with disorderly conduct after writing a violent, profanity-laced essay for his English class. After his arrest, Allen Lee was notified by his recruiter that he was no longer eligible for the Marines because of the criminal charges against him. Despite the fact that Lee was an honor student, the Marines adhered to their policy that any criminal charge makes one ineligible to enlist. The use of profanity, in this instance, proved to be costly.

Broadcast media
In 1978, the Supreme Court ruled on broadcast profanity in FCC v. Pacifica Foundation. A New York radio station had aired a profanity-filled George Carlin monologue after the station warned listeners that the monologue included “sensitive language which might be regarded as offensive to some.” The Federal Communications Commission received a complaint from a man who had heard the broadcast while driving with his young son. Justice John Paul Stevens, writing for the Court, said:

“[P]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. … Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.”

As a result of the Pacifica case, the FCC implemented a “safe-harbor” period that allows television and radio broadcasters to broadcast profane and indecent material. The safe-harbor period falls between 10 p.m. and 6 a.m. The FCC defines “profane language” as “those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance.” The power to enforce such regulations has been vested in the FCC by Congress.

Generally, creditors and telemarketers can use profanity over the telephone. However, many states have passed laws regarding telephone harassment. In Tennessee, for example, telephone harassment is committed by one “who intentionally threatens by telephone … to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient” (T.C.A. § 39-17-308(a)(1)).

The elements for telephone harassment must be proven beyond a reasonable doubt by the state. While the elements vary slightly from state to state, the prosecution generally must prove that the defendant placed the calls anonymously, repetitiously or at an inconvenient hour; the defendant had no legitimate purpose for contacting the victim; and the defendant’s action somehow alarmed or annoyed the victim.

Profanity used over the telephone that fits the elements of harassment would not be protected speech under the First Amendment.

On its face, profane language is generally not a punishable form of speech. The exceptions discussed above are narrow in scope. The context in which the speech is spoken plays a major role in determining whether such language is protected by First Amendment.

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