Dirty Speech Is Protected Speech

After plugging in the words "fuck" and "fucking" to Google, I got 825 million hits. That's four times the combined hits from "apple pie" (38 million), "New York Yankees" (65 million), "U.S. Constitution" (34 million) and "Bill of Rights" (173 million). If such a word is so widely used, and apparently without societal convulsions or dissolution of public morals, why punish people who use it?

What led me to this pseudo-scientific exercise was a story in today's news about a young man from Connecticut, William Barboza, who, upset that he received a speeding ticket on an upstate highway near Liberty, New York, and seeking to vent his annoyance, returned the ticket to the town court's clerk -- with proper payment of the fine -- but with a handwritten five-word vulgarity, which included the word "fuck," as well as the word "tyranny" scribbled over the town name of Liberty.

Apparently, when she opened the envelope and saw what Mr. Barboza had written, the court clerk became alarmed and told the town judge, who presumably became equally alarmed. He contacted Mr. Barboza, directing him to appear in court on the ticket. When Mr. Barboza drove all the way from Connecticut to appear in court, oblivious of the reason for his required appearance, the judge summarily had him arrested, handcuffed, and jailed on a charge of aggravated harassment, which, according to New York's Penal Law § 240.30, is violated when a person, "with intent to harass, annoy, threaten, or alarm another person, communicates by mail in a manner likely to cause annoyance or alarm."

As reported in the story, the Town of Liberty is notorious for locking people up who use in public any crude, vulgar, offensive, and profane language, so Mr. Barboza's case does not seem that exceptional, at least for Liberty. What is unusual is that he sought to vindicate his own liberty. He sued the town, the judge, the police officers, and the prosecutors for violating his First Amendment right to freedom of speech, even speech that is dirty and offensive. And last week, Federal District Judge Cathy Seibel agreed, refusing to dismiss the case, which the town officials sought, and ordered the case to be tried by a jury.

To many observers, offensive speech of the sort used by Mr. Barboza should not receive any constitutional protection. Needless to say, telling a police officer to "fuck off" is not the wisest thing to say, and many persons have been arrested for disorderly conduct for saying it to police. Indeed, I make sure to advise my students in Constitutional Law never to say it, no matter what the provocation. But still, as we learn from the constitutional free speech cases, offensive language of the sort used by Mr. Barboza, and by thousands of other persons similarly eager to vent their displeasure at police or others, is that such language is constitutionally protected. In the landmark 1971 case, Cohen v. California, the defendant expressed his opposition to the Vietnam War by inscribing on the back of his jacket, for a large public audience to see, the words "Fuck the Draft." He was convicted for offensive conduct that disturbed the peace, but the Supreme Court reversed. Justice Harlan's opinion may be the Court's most eloquent homage to the First Amendment protection of speech. Consider these famous lines: "That the air may at times seem filled with verbal cacophony is not a sign of weakness but of strength;" [it is not the government's place] "to punish an unseemly expletive in order to maintain what it regards as a suitable level of discourse;" [the government may not] "cleanse public debate to the point where it is grammatically palatable to the most squeamish among us;" "One man's vulgarity is another's lyric."

As a coda to Mr. Barboza's lawsuit, the New York Court of Appeals last year struck down the aggravated harassment law, finding that the operative terms "annoy" and alarm" are too vague and overbroad to pass constitutional scrutiny. And while much "verbal cacophony" appears increasingly to gorge public and cyber places, the value of unfettered speech, even dirty speech, still outweighs the danger of government silencing speech it deems offensive, even in, of all places, Liberty.