1st Amendment and Free Speech/Profanity & Graffiti

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Question
If someone writes a message in washable chalk on a public sidewalk (for example in front of a police station, a courthouse, etc), can they legally be charged with a criminal act?  Does the inclusion of an obscenity (F***) add to the offense or is the use of that word protected under the First Amendment?

If instead they left signs/flyers on poles in front of the police station/courthouse, etc, and the signs/flyers included the profanity, would that be an illegal act (other than perhaps littering)?

Answer
Hello,

Generally speaking profanity is protected by the First Amendment.  In the famous case of Cohen v. California, the Supreme Court upheld the right of a protester to wear a jacket with "F*ck the Draft" written on the back (with the "F" word written out uncensored on his jacket).  That said, some jurisdictions still have laws on the books punishing such language in public as "fighting words."  Generally throw out such arrests, but some judges who are still offended by such language find ways to uphold the prosecutions.

Graffiti is still a crime.  Drawing on public property or on other people's private property constitutes a crime unprotected by the First Amendment.  Generally, graffiti laws don't differentiate between using easily washable chalk and permanent paint.  If you draw something, it is the same crime, regardless of how easy it is to remove.  A protester found this out the hard way recently when arrested for 13 counts of drawing anti-bank slogans on the sidewalks in front of various Bank of America Branches with easily removable chalk.  He now faces up to 13 years in prison, one year for each count.

Similarly illegally posting leaflets is often considered criminal trespass and can lead to jail time as well.  Under First Amendment rules, police and courts are not supposed to consider the content of the leaflets, but you get the wrong judge, he or she can throw the book at you without directly referencing the content.

I hope this helps!
- Mike  

1st Amendment and Free Speech

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Michael Troy

Expertise

I will answer general questions regarding freedom of speech, petition, or religion. My specialty is in cases involving public employment or education, as well as issues related to campaign finance. I can`t give specific legal advice involving specific cases you might have.

Experience

As an attorney for the Center for Individual Rights, I worked on a number of free speech cases, including Rosenberger v. Univ. of Virginia, in which the Supreme Court upheld my clients' right to run a student newspaper without discrimination because of its religious content. I also worked on White v. Julian, which protected the right of people to protest against a homeless shelter in their neighborhood.

I also worked for the Federal Election Commission on several cases regarding the right to participate in the election process and engage in campaign related speech.

Organizations
Former Attorney for Center for Individual Rights.

Publications
Washington Post
Washington Times

Education/Credentials
J.D. from Univ. of Michigan Law School

Awards and Honors
Truman Scholar

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