Expert: Michael Troy - 8/29/2001

Question
     Can you smell the Irony?  It won't let me send the message because of the profanity.  Anyways... I'm just curious as to what I can say to who and what can I get in trouble for.  How come I always get in trouble with the police for shouting obscenities in public?  Is it because my skin is black or are white people supposed to get in trouble too?  Please give me an overview of free speech and the first amendment in general if possible.  Thank you very much.  (sorry about scaring you)
                           Sincerely,
                                 Eric Smith

Answer
Hi Eric,

The Supreme Court has said that use of profanity in some contexts, at least, is Constiutionally protected.  There is a famous case involving a Vietnam War protestor who was arrested for wearing a jacket that said "fvck the draft" (mispelling intentional hear so my response doesn't get bounced).  The prosecutors argued that they were not censoring the anti-draft message, but rather that the message could be delivered just fine without the offensive language.

The Court held that the profanity in the message was a critical part of it, reflecting the rage and intensity that would not be captured if the jacket said "the draft is bad, m'k?" (apologies to Mr. Mackey on South Park).  

While the Court has upheld the use of such words in some contexts, that does not settle the matter.  Other Courts have held that there are exceptions to the First Amendment, such as the "fighting works" exception.  If I walked up to you and said that your mother did obscene acts with strangers, you would be likely to beat the cr*p out of me.  This is because I said something that would immediately incite a person to violence.  Saying things like that, the Court held, are not protected.

Another reason you could get into trouble is simply for shouting.  If someone is just shouting obscenities in a way that annoys people trying to go about their day, that person might be arrested for "disturbing the peace".  In other words, you wouldn't be in trouble for saying anything in particular, but you would be breaking the law just for shouting in a quiet neighborhood and annoying people, regardless of what you were shouting.

So this can be a bit of a gray area.  There is a case right now, I think in Michigan, were a man was given a ticket for violating a law that bars shouting obscenities in front of women and children.  This case is currently working its way through the courts.  While I think the law in unconstitutional on several levels, the Court's don't usually consult me, and this is not a 100% clear case.

And yes, these laws apply to both black and white people.  I can't say whether the police in your area tend to pick on blacks more than whites in your area a little more.  Unfortuntately some of that prejudice does exist.  However, I suspect if a young white man was walking through a quiet neighborhood shouting obscenities, the police would probably give him a hard time as well.

The law aside, regardless of your exact rights, people don't like other people shouting obscenities.  You might want to tone it down a little just so you don't annoy everyone within the sound of your voice.  Just a little piece of friendly advice.

I hope this helps,
- Mike