Marcus 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.
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.