The Right to Be Profane: South Dakota Supreme Court Upholds Right to Swear At Police

nicubunu_open_mouthMarcus J. Suhn was not happy about bars closing at 2 a.m. on Sept. 2, 2007. So, when a cruiser passed by in Brookings, South Dakota, he screamed “f—ing cop” and let loose with a stream of profanities at the police. He was arrested for his potty mouth, but the South Dakota Supreme Court has now declared such language to be protected speech under the First Amendment.


A lower court had previously ruled that such language constitutes “fighting words” that the U.S. Supreme Court found “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” In a vote of 4-1, the South Dakota voted to reverse in a well-reasoned opinion.

I have always been critical of the 1942 decision in Chaplinsky v. New Hampshire. The Court where the Court affirmed the conviction of Walter Chaplinsky for calling an officer a “fascist” and a “racketeer.” It was a poorly written decision that undermined the first amendment and allowed a massive exception to free speech guarantees. The Court dialed down on the decision a bit in 1971 in Cohen v. California, where it upheld the right of a man to wear a jacket bearing the words “Fuck the Draft.” Later decisions in Gooding v. Wilson (1972) and Lewis v. New Orleans (1974) further limited the impact of Chaplinsky.

Despite the rollback in later cases, police has continued to arrest people for potty mouths, including a woman who swore at her toilet. Even swearing at a police dog prompted an arrest.

Your ability to use spicy language remains subject to time and place limitation. Suhn may want to be careful not to scream “That’s f—ing great!” in court at his victory. Attorneys and defendants have faced severe penalties for foul language in court. Depositions also remain a poor choice for poor language.

In this decision, Meierhenry wrote that “the United States Supreme Court has made it clear that in order for speech to fall within the ‘fighting words’ exception, the words by their very utterance have ‘to tend to incite an immediate breach of the peace’ under the circumstances of the case.” However, in dissent, Justice Richard W. Sabers insisted that the language was used :in this mob-like setting and “the facts of this case are such that defendant’s speech tended to incite a breach of the peace.” Sabers ignores that, if there is a right to use such language to criticize police, it is often in circumstances where a crowd has formed. Under Sabers’ approach, the more controversial actions by police (that drew the most people) would allow the least amount of critical speech. Thus, when the police are accused of abuse conduct by a crowd, they could arrest people for fighting words in using profanity or presumably some forms of non-profane speech.

As for Suhn, he is free to resume his profane exercise of free speech.

For a copy of the opinion, click here.

For the full story, click here.

12 thoughts on “The Right to Be Profane: South Dakota Supreme Court Upholds Right to Swear At Police

  1. I would think that context has a lot to do with deciding that certain speech may be “fighting words” and any self respecting, intelligent, pragmatic police officer, anywhere, should not be expected to receive such words, while on duty. and to consider them some sort of arrestable offense. This is just a case of police exceeding their authority because their ego demands it.

    While I don’t recommend watching TV programs such as “Cops” or “Speeders”, et al, be made a habit by anyone, it is truly inspiring seeing some cop pull over some schmuck for a driving infraction, and the driver invariably heaps a boatload of profane, verbal abuse on the cop. All the while the cop calmly writes out a citation and calmly and civilly explains why he is issuing it. Human behavior at its worst and its best.

  2. Where, if anywhere, DO current LEOs get their training? Clearly, profanity in this situation falls squarely within First Amendment rights.

    I learned at the Federal Law Enforcement Training Center in beautiful (cough!) Glynco, GA that the public can say just about any word they want to an officer. The Center used trained actors that spewed the foulest language at us while we were issuing them citations in very realistic professional scenarios. I doubt that the ‘fighting words’ threshold is often crossed except involving officers who are completely ignorant of the primary tenets of the First Amendment.

    My personal demeanor with the public was simply to say yes ma’am and yes sir to people that I would not otherwise address with that courtesy outside of a LE situation.

    Kudos go to the South Dakota Supreme Court for making a reasonable decision.

  3. Former Federal LEO,

    In some states using profanity on a LEO is legally classed as Assault on a LEO! Scary, very scary.

    Yeah, SD made the right call on this one.

  4. I am the lead plaintiff in a class action lawsuit that is in the final draft stage, so I pretty much know when to get a class action lawyer. I told a huge law firm and they actually congratulated me for finding the action.

    Once in a while, I can hit the nail on the head. I’d also love to nail Google. Google Finance has a blog, which unscrupulous hedge fund managers and unscrupulous CEOs use to hype stock. I figured out what they were doing, and I used some rather pointed language. Whoever it was I insulted, had an inside track at Google. They locked me out of every Google owned site. I can’t post or read on any Google owned site.

    Google does not have the exclusive right to make any subjective final decisions about what you can say in the World Wide Web. They put themselves out to the entire world, then they want to stand back and go case by case, individually. That violates the Equal Protection clause.

    I put the CEO of Google on notice that he has 30 days to restore my access or he can come and tell it to a Federal judge.

    It’s one thing to run a blog about law, and another to actually drive to the courthouse and do something about it. I may turn this over to my class action lawyers.

  5. My response to the justices would be: ” Thank you for the ruling, now go fuck yourselves”.

    Cops are people and should at least be allowed to swear back, maybe off duty at the suspect’s jobs. Just follow them around at the jobsite yelling, “Suck cock motherfucker…I fucking hate construction workers, plumbers, whatever.

    I don’t think people have the right to obstruct us from our duty. Yelling while we are performing a legal duty that you pay us for, and making us stop that duty to politely or unpolitely engage you is tyranny.

    Let’s face it, cops can’t win no matter what they do. Everyone knows how to do the job better. Armchair quarterbacks run the profession and no one really knows much about the job unless you count what is presented by TV/Film writers, journalists looking for a story and the self serving opions of liars…I mean lawyers.

  6. I DON’T HIDE I AM DAVE CLEMENTS SAYING FUCK THE POLICE!!!

    ESPECIALLY THE NEW CASTLE COUNTY POLICE I SAY IT EVERYTIME ONE OF THOSE RACIST BASTARDS ASK ME WHAT I’M DOING WHEN I’M SIMPLY SITTING IN MY SUBURBAN YARD MINDING MY BUSINESS.
    WHEN NECESSARY I TELL THEM GO FUCK YOURSELF AND GET THE FUCK OUT OF MY MUNICIPALITY AND I SAY IT TO THEIR FACE.
    FUCK THE COUNTY PIGS TOO THAT SHOT MY UNARMED BROTHER IN THE BACK MULTIPLE TIMES. HE WAS NOT PLACED UNDER ARREST AND SIMPLY WALKED AWAY AS WITNESS STATED THE PIGS INSTRUCTED HIM TO DO, 43FT LATTER SHOTS RANG AND A PLANTED GUN SURFACES THAT CHANGED BLACK TO SILVER, IT’S MAKE, MODLE AND CALIBER TOO CHANGED AT TRIAL.
    IN FACT I KEEP 5 AND THEIR LOVED-ONES ON MY MIND EVERYDAY.
    (THE RAIN IN SPAIN STAYS MAINLY IN THE PLANE!)

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