profanity and the first amendment

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Profanity & the First Amendment

By Scott Felsenthal
First Amendment Center
legal intern
The origins of the term “profanity” can be traced to the influence of religion in various cultures around the world. The original meaning of “profanity” was restricted to blasphemy. “Blasphemy” was an offensive attack on religion and religious figures, which included swearing in the name of God. As centuries passed, profanity became more distinct from blasphemy. Although blasphemy still refers to language that defames God, a religion or a religious figure, profanity has evolved to include expressions with vulgar, racist and sexual themes.Obscenity and blasphemy laws in the United States were originally meant to prohibit attacks on religion and religious figures or to protect children from profane speech.In recent years the Michigan Court of Appeals considered a case involving that state’s anti-profanity law (People v. Boomer, 655 N.W.2d 255 (Mich. App. 2002)). Timothy Boomer was canoeing down the Rifle River in Michigan when he struck a rock, and was thrown overboard. Boomer began to curse persistently in such a loud voice that a police officer claimed to have heard him from a quarter-mile away. A man in a nearby boat testified that he, his wife and two young children were so appalled by the profane speech that they hurried away. The police officer ticketed Boomer, citing him for violating a more than 100-year-old Michigan law that criminalized the use of profane language in front of women and children.The Michigan Court of Appeals threw out Boomer’s conviction and overturned the Michigan law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to hold that the law violated the First Amendment’s guarantee of free speech and that it would be “difficult to conceive of a statute that would be more vague.”The “cussing canoeist” is just one example in a wide variety of First Amendment cases involving profanity. The general principle is that profanity is protected under the First Amendment. There are situations, however, when profanity is punishable.When profanity is not protected by the First AmendmentFighting words
The U.S. Supreme Court ruled in 1942 in Chaplinsky v. New Hampshire that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are prohibited and are not protected by the First Amendment. Almost 30 years later in 1971, the high court limited Chaplinsky in Cohen v. California by holding that an individual could not be held criminally liable for wearing a jacket into a courthouse that said “Fuck the Draft.” The Supreme Court distinguished the two by explaining that Cohen’s action was a “simple public display” as opposed to a direct insult or intent to incite harm, as was the case in Chaplinsky. (Also see Fighting words section.)
True threats
Another form of speech that is not protected under the First Amendment is “true threats.” The courts have defined “true threat” as a threat that involves statements with serious expressions of an intent to commit an act of violence to an individual or group of individuals. The Supreme Court has also labeled a true threat as a real threat to one’s personal safety (Watts v. United States, 394 U.S. 705 (1969)).
Profanity in various contextsPublic schools
Public schools have vast discretion in controlling what type of language can and cannot be spoken on school grounds. In the 1986 case of Bethel School District No. 403 v. Fraser, a student used explicit sexual metaphors in nominating a fellow student for a position in student government. The public school officials suspended the student for his behavior. Chief Justice Warren Burger wrote:
“The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. … Surely, it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. … The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board” (emphasis added).The Court affirmed that the school board of a public school has the authority to decide when and to what extent profanity and other obscene language may be punished without violating a student’s.Broadcast media
In 1978, the Supreme Court ruled on broadcast profanity in FCC v. Pacifica Foundation. A New York radio station had aired a profanity-filled George Carlin monologue after the station warned listeners that the monologue included “sensitive language which might be regarded as offensive to some.” The Federal Communications Commission received a complaint from a man who had heard the broadcast while driving with his young son. Justice John Paul Stevens, writing for the Court, said:
“[P]atently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder. … Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content.”As a result of the Pacifica case, the FCC implemented a “safe-harbor” period that allows television and radio broadcasters to broadcast profane and indecent material. The safe-harbor period falls between 10 p.m. and 6 a.m. The FCC defines “profane language” as “those words that are so highly offensive that their mere utterance in the context presented may, in legal terms, amount to a nuisance.” The power to enforce such regulations has been vested in the FCC by Congress.Telemarketing
Generally, creditors and telemarketers can use profanity over the telephone. However, many states have passed laws regarding telephone harassment. In Tennessee, for example, telephone harassment is committed by one “who intentionally threatens by telephone … to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient” (T.C.A. § 39-17-308(a)(1)).
The elements for telephone harassment must be proven beyond a reasonable doubt by the state. While the elements vary slightly from state to state, the prosecution generally must prove that the defendant placed the calls anonymously, repetitiously or at an inconvenient hour; the defendant had no legitimate purpose for contacting the victim; and the defendant’s action somehow alarmed or annoyed the victim.Profanity used over the telephone that fits the elements of harassment would not be protected speech under the First Amendment.Conclusion
On its face, profane language is generally not a punishable form of speech. The exceptions discussed above are narrow in scope. The context in which the speech is spoken plays a major role in determining whether such language is protected by First Amendment.
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