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Federal judge: State can prohibit profanity on public highways

By David L. Hudson Jr.
First Amendment scholar

A North Carolina law prohibiting “profane” or “indecent” language on public highways does not violate the First Amendment, a federal judge ruled recently in the case of an intoxicated individual who yelled at police officers.

The statute in question provides: “If any person shall, on any public road or highway and in the hearing of two or more persons, in a loud and boisterous manner, use indecent or profane language, he shall be guilty of a Class 3 misdemeanor.”

Danial A. Flowers was convicted under this law and convicted as well of public intoxication and resisting or obstructing a police officer. The June 2006 incident occurred in Graham County on a section of a public highway running through Fontana Village Resorts in the Great Smoky Mountains National Park. Officers spotted a parked truck with coolers full of beer, trash and a group of people. As the officers approached, Flowers allegedly called them a “dickhead” and “f---king a--holes.”

After his conviction before a federal magistrate, Flowers appealed to the U.S. District Court. The American Civil Liberties Union of North Carolina filed an amicus brief, supporting Flowers’ constitutional challenge to the profanity law. Flowers and the ACLU contended that the law was overbroad on its face and as applied to him. In First Amendment jurisprudence, a facial challenge asks whether a law as it is written violates free expression on its face, while an as-applied challenge focuses upon the specific application of the law to the individual litigant.

On Nov. 8, U.S. District Judge Lacy H. Thornburg rejected the facial-overbreadth challenge in United States v. Flowers, reasoning that the profanity law covers only fighting words — a narrow category of unprotected speech involving face-to-face personal insults. The U.S. Supreme Court ruled in 1942 in Chaplinsky v. New Hampshire that fighting words were not a form of protected speech because “such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Thornburg approved of this “limiting construction,” reasoning that when the statute “is construed to prohibit fighting words … the statute loses any potential for facial overbreadth.”

He next addressed the as-applied challenge, focusing upon the potentially volatile situation involving intoxicated individuals and police officers.

“The officers testified repeatedly that Defendant’s targeted profanity and aggressive demeanor appeared calculated to incite the other partygoers against the officers,” Thornburg wrote. “Had cooler heads not prevailed in the altercation, the situation could have escalated rapidly, with tragic consequences — particularly if weapons had become involved.”

Thornburg added that these factors — emphasizing that the officers were outnumbered six to one — established that “Defendant’s words and conduct created a ‘clear and present danger’ of inciting such a conflict.”


Indiana appeals court: Cursing at cop was protected speech

Unanimous panel overturns teen's juvenile conviction for disorderly conduct, finding that comments only annoyed police and didn't cause real harm. 05.27.05

Ruling: Man arrested for cursing at meeting should get day in court
6th Circuit reinstates lawsuit, saying no 'reasonable peace officer … would believe that mild profanity while peacefully advocating a political position could constitute a criminal act.' 02.05.07

Pa. woman in hot water for profanity-laced tirade at toilet
Dawn Herb, who was shouting curses at overflowing commode in her home, was overheard by off-duty cop, charged with disorderly conduct. 10.17.07

Profanity & the First Amendment
By Scott Felsenthal Generally profanity is considered protected speech, but there are situations when its use can be punishable. 05.02.07

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