I have been writing about concerns over the current protests are impacting free speech and free press values. Those concerns are equally present in the arrest in Valdosta, Georgia a young woman protesting with a sign containing obscene language. Particularly at a time of legitimate anger and demands for reform after the killing of George Floyd, such arrests contravene core political speech by treating the content of the message as a matter of “disorderly conduct.”
The sign is described as obscene language alluding to a lewd act between Sheriff Ashley Paulk and President Donald Trump.
The language may have been obnoxious but it is a political statement at a moment of historical political activism across the country.
The Georgia statute shows the danger of such provisions of subjectivity or bias in enforcing:
16-11-39. Disorderly conduct
(a) A person commits the offense of disorderly conduct when such person commits any of the following:
(1) Acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health;
(2) Acts in a violent or tumultuous manner toward another person whereby the property of such person is placed in danger of being damaged or destroyed;
(3) Without provocation, uses to or of another person in such other person’s presence, opprobrious or abusive words which by their very utterance tend to incite to an immediate breach of the peace, that is to say, words which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person in such other person’s presence, naturally tend to provoke violent resentment, that is, words commonly called “fighting words”; or
(4) Without provocation, uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.
(b) Any person who commits the offense of disorderly conduct shall be guilty of a misdemeanor.
(c) This Code section shall not be deemed or construed to affect or limit the powers of counties or municipal corporations to adopt ordinances or resolutions prohibiting disorderly conduct within their respective limits.
The standard of “obscene and vulgar or profane language” is dangerously subjective and has long been the subject of challenges from free speech advocates. These statutes however have been largely upheld (including in one case swearing at a police officer), though “as applied” challenges have succeeded.
This debate has raged, particularly after Chaplinsky v. State of New Hampshire, 315 U.S. 568 (1942), when Supreme Court allowed for the criminalization of “the lewd and obscene, the profane, the libelous, and insulting or ‘fighting’ words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 571. In that case, Chaplinsky was convicted for confronting another person on a public sidewalk the words, “You are a God d—ed racketeer,” and “a d—ed Fascist and the whole government of Rochester are Fascists or agents of Fascists.” The Supreme Court stressed that those words constituting fighting words were “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
This sign is clearly not fighting words and clearly does contain core political viewpoints. While police want to defuse flash points in protests, they cannot do so by removing those who are expressing views in inflammatory ways in my view.