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
9 Responses to “Remember, profanity isn’t always protected speech”
The First Amendment Center is an educational organization and cannot provide legal advice.
Ken Paulson is president and chief executive officer of the First Amendment Center at Vanderbilt University and in Washington, D.C. Previously, Paulson served as the editor and senior vice president/news of USA Today.
Gene Policinski, senior vice president and executive director of the First Amendment Center and president and chief operating officer of the Diversity Institute, 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 an expert in First Amendment issues who writes for firstamendmentcenter.org and for other publications. Hudson teaches law and was a scholar at the First Amendment Center.
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.
Soo, if I use profanity expressing my opinion of entrance rules getting into a community’s guarded entrance by Security Personnel, I am okay?? I did not direct my profanity at the guard, but at the stupid rules for getting in, even when I had a pass to do so. I did obey what the guard told me to do, and drove two miles out of my way to go into the main gate. I am a retired old geezer, and really get upset when I believe something is really wrong.
Did this Security Company violate my Rights to Freedom of Speech if they report my profanity to the Community Association, and then I am in turn banned from ever entering the community again?
BTW, I believe my right to privacy in the State of California was violated also as the guard supposedly recorded my “in person” conversation without my knowledge.
With private community associations it’s a different situation, because they are not agents of the government. Also if private property is involved, the owners can make the rules. However, if you feel your rights have been violated, you should consult an attorney.
i have a question. my yard is a high school bus stop and the boys there won’t quit dropping th word fuck. i have grade school children up at this time and everyone can hear these two boys screaming fuck this fuck you. it is getting really old quick and the school won’t do anything. should i just get my video recorder and tape them and just call the police on them next time? any suggestions on what to do would be apprechated.
Although under the First Amendment public profanity cannot be prohibited, many schools have rules regarding behavior on school buses. You could call the school principal and ask that those rules be enforced. Riding a school bus is a privilege, not a right, so schools can exercise some control over how kids behave on buses just as they do in school.
So I was talking to a coworker when I referred to another coworker as a fucking idiot. She turned me in because our phone calls are recorded. So they listened to my phone call and then fired me. Isn’t this infringing on my right to privacy as well as freedom of speech? I wasn’t saying it directly to the person, I was talking about another person.
We don’t provide legal advice, but if it’s a private employer, the company can do whatever it wants. There is little privacy in a workplace.
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