{"id":1564,"date":"2012-06-13T19:44:22","date_gmt":"2012-06-13T23:44:22","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1564"},"modified":"2015-10-02T15:23:10","modified_gmt":"2015-10-02T15:23:10","slug":"massachusetts-town-plans-to-cite-people-for-public-profanity-heres-why-it-wont-work","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/06\/13\/massachusetts-town-plans-to-cite-people-for-public-profanity-heres-why-it-wont-work\/","title":{"rendered":"Massachusetts town plans to cite people for public profanity. Here\u2019s why it won\u2019t work \u2026"},"content":{"rendered":"

By\u00a0Jonathan Peters
\n<\/em>Follow me\u00a0@jonathanwpeters\u00a0on Twitter.<\/p>\n

Middleborough is a quiet town in Massachusetts known for its cranberry bogs and profanity problem. It\u2019s located in historic Plymouth County and \u2026 wait, what? A\u00a0profanity<\/em>\u00a0problem?<\/p>\n

Absolutely, says Mimi Duphily, a former Middleborough selectwoman who runs a small business in the downtown area. She and other business owners are\u00a0taking a stand\u00a0against public profanity that can discomfit customers.
\n
\n\u201c[People will] sit on the bench and yell back and forth to each other with the foulest language,\u201d Duphily\u00a0told\u00a0WBZ, the CBS affiliate in Boston. \u201cIt\u2019s just so inappropriate.\u201d<\/p>\n

Indeed, it\u2019s so inappropriate that Middleborough residents voted Monday at a town meeting to\u00a0approve a bylaw, proposed by the police chief, to issue $20 citations for public profanity.<\/p>\n

\u201cWe have a lot more important things to do,\u201d\u00a0said\u00a0police chief Bruce Gates. \u201cBut these are things that are quality of life issues\u2014community and policing issues that a lot of people don\u2019t want to see downtown.\u201d<\/p>\n

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:<\/p>\n

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.<\/p>\n

<\/em>To enforce that bylaw, the police would have to arrest a person, and the prosecutor would have to file a criminal complaint\u2014a 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.<\/p>\n

Specifically, the\u00a0new bylaw\u00a0states that any public profanity offense\u2014that is, any violation of the 1968 bylaw\u2014may be disposed non-criminally. Here\u2019s the key language:<\/p>\n

[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.<\/p>\n

<\/em>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\u2019s gotten a speeding ticket.<\/p>\n

The whole scheme is simple and more efficient, yes, but it\u2019s also unenforceable. The 1968 bylaw is too vague, and it impinges on First Amendment freedoms. The same goes for the\u00a0provision of state law\u00a0that allows localities to enforce such bylaws.<\/p>\n

VOID FOR VAGUENESS<\/p>\n

<\/em><\/strong>Courts routinely strike down vague laws; that\u2019s the import of the vagueness doctrine. In the 1994 caseKolender v. Lawson<\/em>, the U.S. Supreme Court said the vagueness doctrine \u201crequires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited.\u201d The statute must do so, the Court said, \u201cin a manner that does not encourage arbitrary and discriminatory enforcement.\u201d<\/p>\n

The Court laid out the reasons for the doctrine 22 years earlier, in the 1972 case\u00a0Grayned v. City of Rockford<\/em>:<\/p>\n

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 \u2026 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 \u2026 than if the boundaries of the forbidden areas were clearly marked.<\/p>\n

<\/em>Here, Middleborough\u2019s\u00a01968 bylaw contains no restrictive language whatsoever that would limit or guide a prosecution or citation of someone who \u201caccosts or addresses another person with profane or obscene language.\u201d The bylaw fails to provide fair notice of what is prohibited.<\/p>\n

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\u2019s full of shit? What if I ask a clerk for directions at the town hall while I\u2019m wearing a shirt that says \u201cFuck Voting\u201d?<\/p>\n

Further, the bylaw encourages arbitrary and discriminatory enforcement. Even the Middleborough police chief\u00a0said\u00a0Monday that it all comes down to an officer\u2019s 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.<\/p>\n

That requires people to guess what language a police officer would consider profane or obscene\u2014and under what circumstances. In other words, per\u00a0Grayned<\/em>, the bylaw \u201cimpermissibly delegates basic policy matters to policemen \u2026 for resolution on an ad hoc and subjective basis.\u201d<\/p>\n

FIRST AMENDMENT PROTECTION<\/p>\n

<\/em><\/strong>The U.S. Supreme Court has extended protection to speech with vulgar and sexual themes. Consider the 1971 case\u00a0Cohen v. California<\/em>, in which the Court overturned the \u201cdisturbing the peace\u201d conviction of a man who wore a jacket in public bearing the phrase \u201cFuck the Draft\u201d (he wore it, no less, in the Los Angeles County Courthouse).<\/p>\n

Writing for the majority, Justice Harlan noted that \u201c[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.\u201d Harlan wrote that \u201cone man\u2019s vulgarity is another\u2019s lyric,\u201d and he characterized the speech interests this way:<\/p>\n

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.<\/p>\n

<\/em>To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance \u2026 That the air may at times seem filled with verbal cacophony is, in this sense, not a sign of weakness but of strength.<\/p>\n

<\/em>More recently, the Michigan Court of Appeals struck down its state profanity statute in the 2002 case\u00a0People v. Boomer<\/em>. 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.<\/p>\n

Adding insult to injury, a family was nearby, and the officer cited Boomer for violating a Michigan statute prohibiting the use of \u201cindecent, immoral, obscene, vulgar or insulting language\u201d in front of women or children.<\/p>\n

The Court of Appeals overturned Boomer\u2019s conviction and struck down the statute, holding that the statute violated the First Amendment and that it would be \u201cdifficult to conceive of a statute that would be more vague.\u201d The court added that \u201callowing a prosecution where one utters \u2018insulting\u2019 language could possibly subject a vast percentage of the populace to a misdemeanor conviction.\u201d<\/p>\n

In general, then, the First Amendment protects profanity, but it doesn\u2019t protect all\u00a0iterations 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\u2019t claim protection. Likewise, location matters. Public schools, for example, can punish profanity used on campus.<\/p>\n

That being said, Middleborough\u2019s 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.<\/p>\n

Back to the drawing board, Middleborough.<\/p>\n

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<\/em>\u00a0<\/em>@jonathanwpeters<\/em>\u00a0<\/em>on Twitter.\u00a0<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0Jonathan Peters Follow me\u00a0@jonathanwpeters\u00a0on Twitter. Middleborough is a quiet town in Massachusetts known for its cranberry bogs and profanity problem. […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1564","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-pe","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1564","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1564"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1564\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1564"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1564"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1564"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}