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.
Tags: fighting words, incitement, profanity, true threat
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The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com.
Gene Policinski, senior vice president and executive director of the First Amendment Center, is a veteran journalist whose career has included work in newspapers, radio, television and online.
John Seigenthaler founded the First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.
Dr. Charles C. Haynes is director of the Religious Freedom Education Project at the Newseum. He writes and speaks extensively on religious liberty and religion in American public life.
David L. Hudson Jr. is a scholar at the First Amendment Center. Hudson writes for firstamendmentcenter.org and for other publications devoted to First Amendment issues.
Tiffany Villager is director/First Amendment studies at the First Amendment Center, which she joined in 1993. She also served as the center’s research manager and research coordinator, and developed the center’s library.
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The first six paragraphs of this article seem to boil down to this: Profanity doesn’t make speech less protected, but it also doesn’t make speech more protected than it would be without it. My thought is this: Why would anyone expect profanity to make speech more protected? Speech is already almost completely protected except when it falls into an unprotected category. Unprotected categories have already been deemed by the court to be dangerous enough that they warrant suppression. It would be completely unreasonable for anyone to think that inclusion of profanity would negate the court’s balancing in those cases.