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Curses! Blasphemy, profanity laws still on the books

By David L. Hudson Jr.
First Amendment scholar
08.11.09

Can you say that in public?

Watch your language out there, because profanity and blasphemy could lead to criminal charges.

We might hope that First Amendment-protected free speech lets us utter profanities, blasphemies and other choice phrases that occasionally slip from our intemperate tongues. After all, the U.S. Supreme Court protected a man who wore a jacket into a Los Angeles County Courthouse bearing the words "Fuck the Draft." That led to the famous Cohen v. California (1971) ruling in which Justice John Marshall Harlan — a conservative during the Warren Court years — uttered a phrase that has become First Amendment lore: "One man's vulgarity is another's lyric."

But hold on. Yes, in a free society adult citizens outside of special contexts (jobs, military, school) can speak their minds in the open air. But if you think old laws punishing profanity and blasphemy no longer exist, you're wrong — a surprising number of state laws still prohibit such speech.  Even though the laws are rarely enforced, they are still on the books.

Don't you solemnly swear
Massachusetts’ blasphemy law threatens that:

“Whoever willfully blasphemes the holy name of God by denying, cursing, or contumeliously reproaching God, his creation, government or final judging of the word, or by cursing or contumeliously reproaching Jesus Christ or the Holy Ghost, or by cursing or contumeliously reproaching or exposing to contempt and ridicule, the holy word of God contained in the holy scriptures shall be punished by imprisonment in jail for not more than one year or by a fine of not more than three hundred dollars, and may also be bound to good behavior.”

Michigan's blasphemy law says: “Any person who shall willfully blaspheme the holy name of God, by cursing or contumeliously reproaching God, shall be guilty of a misdemeanor.”

Oklahoma law provides: “Blasphemy consists in wantonly uttering or punishing words, casting contumelious reproach or profane ridicule upon God, Jesus Christ, the Holy Ghost, the Holy Scriptures, or the Christian or any other religion.” Uttering such speech is classified as a misdemeanor.

Other states have general anti-profanity laws conceived to protect society from the potty-mouthed. Consider this Mississippi law:

"If any person shall profanely swear or curse, or use vulgar and indecent language, or be drunk in any public place, in the presence of two (2) or more persons, he shall, on conviction thereof, be fined not more than one hundred dollars ($100.00) or be imprisoned in the county jail not more than thirty (30) days each."

Another Mississippi law prohibits entering “the dwelling house of another” and using “abusive, profane, vulgar or indecent language.”

Drivers beware, as well. Some states have laws that specifically limit cursing on public highways.

A North Carolina law states: “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.”

Some anti-profanity laws were passed to shield women and children from foul-mouthed men. Consider this Michigan law: “Any person who shall use any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor.”

Another Oklahoma law warns, “If any person shall utter or speak any obscene or lascivious language or word in any public place, or in the presence of females, or in the presence of children under ten (10) years of age, he shall be liable to a fine of not more than One Hundred Dollars ($100.00), or imprisonment for not more than thirty (30) days, or both.”

Some states, at least, don’t impose hundreds of dollars in fines for cursing and swearing.

Under Rhode Island’s profanity law, “Every person who shall be guilty of profane swearing and cursing shall be fined not exceeding five dollars ($5.00).”

Are they enforced?
Having some of these laws on the books is troubling from a First Amendment perspective. And some of them are still enforced.

In United States v. Flowers (2007), a federal district court in North Carolina upheld the conviction of man for cursing at police officers on a public highway. The court interpreted the broadly worded profanity law as applying only to fighting words — words likely to provoke an immediate breach of the peace.

Consider too the plight of the cussing canoeist Timothy Boomer, who in 1999 was charged and convicted for violating a Michigan anti-profanity law designed to protect women and children.

Boomer hit a rock and took a spill while canoeing down the Rifle River. Upon resurfacing he let loose what a sheriff’s deputy characterized as three minutes of profanity within hearing distance of a father, mother and their two youngsters. Though a Michigan appeals court later tossed the conviction, Boomer remained known as “the cussing canoeist.” He told the Associated Press in 2002: “I'm a little more careful about what I say in public these days.”

Perhaps more should take heed of Timothy Boomer’s warning. Check your state codes.


Related

Cussing canoeist's conviction thrown out, along with 105-year-old law

Michigan Court of Appeals rules 1897 statute barring use of vulgar language in front of women, children is unconstitutional. 04.02.02

Federal judge: State can prohibit profanity on public highways

By David L. Hudson Jr. Man who cursed at North Carolina police officers had argued that law was overbroad. 11.20.07

Blog: Aw, shucks! Anti-cussing resolution delayed

By David L. Hudson Jr. State lawmakers appear stymied by obscenely large budget deficit. 03.03.10

Blog: Courts frown on teens' use of fighting words
By David L. Hudson Jr.Judges in Arizona, North Dakota reject First Amendment defenses asserted by students convicted of delinquency for their speech. 03.11.10

Fan profanity
Fighting words

Fighting Words & Related Doctrines

Profanity

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