by By Jonathan Peters
Follow me @jonathanwpeters on Twitter.
Middleborough is a quiet town in Massachusetts known for its cranberry bogs and profanity problem. It’s located in historic Plymouth County and … wait, what? A profanity problem?
Absolutely, says Mimi Duphily, a former Middleborough selectwoman who runs a small business in the downtown area. She and other business owners are taking a stand against public profanity that can discomfit customers.
“[People will] sit on the bench and yell back and forth to each other with the foulest language,” Duphily told WBZ, the CBS affiliate in Boston. “It’s just so inappropriate.”
Indeed, it’s so inappropriate that Middleborough residents voted Monday at a town meeting to approve a bylaw, proposed by the police chief, to issue $20 citations for public profanity.
“We have a lot more important things to do,” said police chief Bruce Gates. “But these are things that are quality of life issues—community and policing issues that a lot of people don’t want to see downtown.”
Well, Middleborough has not only a profanity problem but also a couple of constitutional problems. Let me explain. The town criminalized public profanity in 1968, in a bylaw that states:
Whoever having arrived at the age of discretion accosts or addresses another person with profane or obscene language in a street or other public place, may be punished by a fine of not more than $20.00 dollars.
To enforce that bylaw, the police would have to arrest a person, and the prosecutor would have to file a criminal complaint—a process worth neither the time nor the effort. So the residents approved a bylaw Monday to give police officers the discretion to cite people, rather than arrest them, for public profanity.
Specifically, the new bylaw states that any public profanity offense—that is, any violation of the 1968 bylaw—may be disposed non-criminally. Here’s the key language:
[A police officer], as an alternative to initiating criminal proceedings, may give to the offender a written notice to appear before the clerk of the district court having jurisdiction thereof.
After receiving the citation, the offender can (1) contest the violation by appearing at a hearing, or (2) confess to the violation by paying a $20 fine. This should sound familiar to anyone who’s gotten a speeding ticket.
The whole scheme is simple and more efficient, yes, but it’s also unenforceable. The 1968 bylaw is too vague, and it impinges on First Amendment freedoms. The same goes for the provision of state law that allows localities to enforce such bylaws.
VOID FOR VAGUENESS
Courts routinely strike down vague laws; that’s the import of the vagueness doctrine. In the 1994 caseKolender v. Lawson, the U.S. Supreme Court said the vagueness doctrine “requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.” The statute must do so, the Court said, “in a manner that does not encourage arbitrary and discriminatory enforcement.”
The Court laid out the reasons for the doctrine 22 years earlier, in the 1972 case Grayned v. City of Rockford:
Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly … Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of [those] freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.
Here, Middleborough’s 1968 bylaw contains no restrictive language whatsoever that would limit or guide a prosecution or citation of someone who “accosts or addresses another person with profane or obscene language.” The bylaw fails to provide fair notice of what is prohibited.
What if I stand in a park and give a speech to a small group about the damned foolish policies of an elected official? What if I stand alone in the street and tell a friend on the phone that he’s full of shit? What if I ask a clerk for directions at the town hall while I’m wearing a shirt that says “Fuck Voting”?
Further, the bylaw encourages arbitrary and discriminatory enforcement. Even the Middleborough police chief said Monday that it all comes down to an officer’s discretion. He said citations would not be issued if two men cursed while watching a sporting event or if someone cursed after dropping an ice cream cone.
That requires people to guess what language a police officer would consider profane or obscene—and under what circumstances. In other words, per Grayned, the bylaw “impermissibly delegates basic policy matters to policemen … for resolution on an ad hoc and subjective basis.”
FIRST AMENDMENT PROTECTION
The U.S. Supreme Court has extended protection to speech with vulgar and sexual themes. Consider the 1971 case Cohen v. California, in which the Court overturned the “disturbing the peace” conviction of a man who wore a jacket in public bearing the phrase “Fuck the Draft” (he wore it, no less, in the Los Angeles County Courthouse).
Writing for the majority, Justice Harlan noted that “[t]his case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.” Harlan wrote that “one man’s vulgarity is another’s lyric,” and he characterized the speech interests this way:
The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.
To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance … That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.
More recently, the Michigan Court of Appeals struck down its state profanity statute in the 2002 case People v. Boomer. Timothy Boomer was canoeing down Rifle River when he struck a rock and fell overboard. He cursed so much and so loudly that a police officer said he heard Boomer from a quarter-mile away.
Adding insult to injury, a family was nearby, and the officer cited Boomer for violating a Michigan statute prohibiting the use of “indecent, immoral, obscene, vulgar or insulting language” in front of women or children.
The Court of Appeals overturned Boomer’s conviction and struck down the statute, holding that the statute violated the First Amendment and that it would be “difficult to conceive of a statute that would be more vague.” The court added that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.”
In general, then, the First Amendment protects profanity, but it doesn’t protect all iterations of it. Certain categories of speech (e.g., true threats, fighting words, incitement to imminent lawless action, etc.) lie outside the ambit of the First Amendment. So if you make a true threat using profanity, you couldn’t claim protection. Likewise, location matters. Public schools, for example, can punish profanity used on campus.
That being said, Middleborough’s 1968 bylaw unquestionably impinges on First Amendment freedoms. Because of its vague contours, it would silence some speakers whose messages are entitled to protection. That would be especially true in light of the new bylaw that amplifies the specter of punishment by making it more efficient for the police to enforce the offense.
Back to the drawing board, Middleborough.
Jonathan Peters is a media lawyer and the Frank Martin Fellow at the Missouri School of Journalism, where he is working on his Ph.D. and specializing in the First Amendment. He has written on legal issues for a variety of news outlets, most recently the Columbia Journalism Review, The Nation, Wired and PBS. Follow him @jonathanwpeters on Twitter.