I love America more than any other country in this world, and exactly for this reason, I insist on the right to criticize her perpetually
James A Baldwin * Notes of a Native son, 1955
The Supreme Court has recognized that the First Amendment protects expression even if it is:
- “offensive or disagreeable” speech, Texas v. Johnson, 491 U.S. 397, 414 (1989) (burning of the flag)
- opprobrious words or abusive words to police, Gooding v. Wilson, 405 US 518 (1972) (statement to police officer “White son of a bitch, I’ll kill you.” “You son of a bitch, I’ll choke you to death” protected speech and to another officer, “You son of a bitch, if you ever put your hands on me again, I’ll cut you all to pieces.”
- Verbal challenge to arresting police officer City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987) (protected by the First Amendment since a significant amount of verbal criticism and challenge directed at police officers is protected speech.)
- threat to identifiable group NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982) (“break the damn necks” protected speech unless, taken in context, it tends to incite “imminent lawless action.”),
- ‘‘distasteful’’ or offensive speech, Cohen v. California, 403 U.S. 15, 21 (1971) (wearing of a jacket bearing the words ‘‘Fuck the Draft’’ in a courthouse)
- “hateful” speech, Matal v. Tam, 582 U.S. 218 (2017)
- “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949)
- ‘‘misguided’’ speech, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 574 (1995) (exclusion of a group from a private parade); Cantwell v. Connecticut, 310 U.S. 296, 310 (1940) (religious speech)
- ‘‘scurrilous’’ speech, Cohen, 403 U.S. at 22
- “vehement, caustic, and sometimes unpleasantly sharp” speech, New York Times v. Sullivan, 376 U.S. 254, 270 (1964)
- speech that ‘‘stirs people to anger,’’ Terminiello, 337 U.S. at 4.
- speech that uses ‘‘unseemly expletive[s],’’ Cohen, 403 U.S. at 23 or uses ‘‘four-letter word[s],’’ Id. at 25 or ‘‘execrations (cursing or denouncing),’’ Id. at 23
- obscene statements, Hess v. Indiana, 414 U.S. 105, 107(1973) (statement that “We’ll take the fucking street later (or again)” at anti-war demonstration cannot be punished as obscene)
- ‘‘contemptuous’’ speech, Street v. New York, 394 U.S. 576, 593 (1969) (burning of the flag accompanied by derogatory words relating thereto).
- ‘‘offensive’’ speech, Hill v. Colorado, 530 U.S. 703, 715 (2000) (statute prohibiting certain expressive activity within 100 feet of the entrance to a medical facility); Texas v. Johnson, 491 U.S. at 414; Cohen, 403 U.S. at 23, 25; Street, 394 U.S. at 592
- calling people demeaning or inflammatory names. Claiborne, 458 U.S. at 903-04, 909-12.
- ‘‘insulting’’ speech, Boos v. Barry, 485 U.S. 312, 322 (1988) (signs near an embassy that might bring the foreign government into ‘‘public odium’’ or ‘‘public disrepute’’
- ‘‘outrageous’’ speech, Id.,
- even ‘‘hurtful’’ speech. Hurley, 515 U.S. at 574.
But do those First Amendment protections apply when you talk to a cop?
Yes. Offensive speech does not lose its protection just because it may be directed to a police officer. The First Amendment, U.S. Const. amend. I, protects a significant amount of verbal criticism and challenge directed at police officers. Speech is often provocative and challenging, but it is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. City of Houston, Texas v. Hill, 482 U.S. 451, 461 (1987).
This brief post should not be read to condone a person ‘s conduct and profanity to police. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But as disgraceful as a person’s language may be, it i not illegal; criticism of the police is not a crime but an exercise of freedom to speak foolishly and without moderation. Hill, 482 U.S. 451, 461–63. Indeed, Mr. Justice Frankfurter has said, “one of the prerogatives of American citizenship is the right to criticize public men and measures — and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-674 (1944). As succinctly stated by Justice Harlan, “Governmental bodies may not prescribe the form or content of individual expression.” Cohen v. California, 403 U.S. at 23.
More recently, in United States v. Poocha, 259 F.3d 1077, 1082 (9th Cir. 2001), the Court held that, “criticism of the police, profane or otherwise, is not a crime.” Justice William J. Brennan wrote in holding that flag burning is a form of offensive speech protected by the Constitution, “if there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 1989.
As Justice Jackson told us, “freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943). In the end, this Court should recall that the “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 107 S.Ct. At 2510.
If you want to protect your First Amendment rights, contact attorney Paul A. Ksicinski immediately at 414-207-6345.