Can using the phrases "damn bullshit" and "sorry damn asshole" during a 911 call in which you, without even yelling, complain about a police officer - one who you blame for the death of your 83-year-old, disabled mother - get you arrested and jailed?
The answer is yes and, sadly, it happened in Rocky Face, Ga., to a 58-year-old, disabled veteran of the Marine Corps named Boyd Green.
A Georgia criminal statute prohibits "obscene, vulgar, or profane language with the intent to intimidate or harass a 911 communications officer." Although the charges under that law were later dismissed, Green last week - with the pro bono help of the Southern Center for Human Rights and Kilpatrick Townsend & Stockton - filed a lawsuit in federal court alleging his arrest violated the First Amendment right of freedom of speech.
Although Green v. Chitwood seems at first glance trivial, it is both the backstory and the vague terms used in statute that make Green's arrest so outrageous and egregious.
First the factual backstory. According to Green's complaint:
"On June 20, 2013, a City of Dalton police officer arrested Green for driving under the influence. Green told the arresting officer that his mother was ill and alone. He implored the officer to have someone check on her. No one checked on Ada Green.
Once incarcerated, Green again notified officials about his mother's condition. He asked jail staff to send someone to ensure that she was safe. No one checked on Ada Green despite Green's pleas. Green was still in custody, five days later, when Ada Green was found in her home by a friend, deceased. Devastated, Green was subsequently released from jail and placed on probation for the DUI conviction.
Nearly a year later, on June 2, 2014, Green dialed 911 and was connected to a 911 dispatcher. Green told the 911 dispatcher that he wanted to see the Dalton police officer who arrested him for DUI in 2013. The 911 operator asked Green 'What's the problem?' Green responded: 'The problem is he let my momma lay up here and die. That's the problem.'
During the 82-second 911 phone call, Green did not raise his voice, threaten the 911 dispatcher, or insult her in any way. He used expletives two times, in passing. First, he said, '[t]he sorry damn asshole knows me,' referring to the Dalton police officer who had arrested him in 2013. Later in the conversation he used the words 'damn bullshit.'"
For that, he was arrested and jailed.
There are very categories of unprotected speech in the United States. One of them is called fighting words. But fighting words must not only be personally abusive epithets, they also must be spoken in a one-on-one, face-to-face situation (think of a baseball manager and an umpire yelling at each other toe to toe) where the target of the words is likely to swing back and hit the speaker. This, however, was a telephone call.
Additionally, true threats of violence are not protected by the First Amendment, but Green never threatened anyone during the call. The 911 operator was not placed in imminent fear of death or great bodily harm.
What's more, police must put up with a greater amount of offensive and abusive speech than the average person. The U.S. Supreme Court made this clear. It concluded in 1987 in City of Houston v. Hill that "in the face of verbal challenges to police action, officers and municipalities must respond with restraint." The Court added that "the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers."
While Boyd Green was not speaking directly to an officer, a 911 operator is an extension of law enforcement personnel and should be trained to handle what often are emotional calls. Indeed, according to Green's complaint, the operator told a sheriff's deputy after the call that Green "didn't use a whole lot" of profanity and that "he did say a couple of cuss words, but it wasn't like complete cusswords." In brief, the 911 operator was not particularly upset, but that didn't stop Green's arrest.
A huge problem with the statute under which Green was arrested is its use of the terms "vulgar" and "profane language." Obscene speech is not protected by the First Amendment and thus may be permissibly regulated by Georgia. There is a precise legal definition of obscenity too.
But vulgar and profane language, in contrast, generally are protected by the First Amendment, especially when the words are used in a political context, such as complaining about the actions (or alleged lack thereof) by a police officer.
The real problem with a law that uses a term like "vulgar" language is its vast vagueness. It provides police with unbridled discretion regarding how to enforce it, fairly or unfairly.
In protecting Paul Robert Cohen's First Amendment right to wear in a Los Angeles courthouse a jacket emblazoned with the words "Fuck the Draft," the U.S. Supreme Court wrote in Cohen v. California:
"while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual."
Surely there are better uses of law enforcement resources than to send an officer to arrest Boyd Green. But now the failure of the law enforcement to exercise a little bit of common sense will cost it federal court.