Profanity and the First Amendment
Updated: Aug 9, 2018
For all my friends who regularly use profanity to punctuate their conversations, you may want to watch your mouth. In this era where a U.S. president has been caught using foul language, it may seem as though the use of profanity is acceptable. However, that is far from the truth.
It may seem extreme or silly that people are arrested for expressing their displeasure, anger, or pain by using profane words; however, it does happen. Many states have anti-profanity laws that have been on the books for decades (some since the 1800s!). This fact has led to some of our fellow Americans being arrested for cursing.
North Carolina, for example, had a 1913 law which made it a misdemeanor offense to use “indecent or profane language” in a loud and boisterous manner, within earshot of two or more people on any public road or highway in North Carolina. The law was considered unconstitutionally vague after a woman appealed her arrest and conviction for use of the word “damn” when she told a pair of officers in 2010 that they needed to “clean your damn dirty car.”
And as recently as 2016, a South Carolina anti-profanity law was upheld when the courts affirmed the conviction of a woman who had called the police to retrieve her keys form a family member. In the presence of the police, the woman said, “This is some motherf***ing s**t.” She was arrested under the state’s profanity law. The reason the conviction was upheld was because the woman was within 60 yards of a church. The court upheld her conviction stating it was “…neither unconstitutional nor vague because the law only applied to ‘fighting words’.”
While anti-profanity laws are subject to being challenged, many of these laws remain constitutional because of the “fighting words” doctrine established in Chaplinsky v. New Hampshire (1942). The doctrine defines “fighting words” as “… words, which by their very utterance, inflict injury or cause an immediate breach of the peace.”
Chaplinsky v. New Hampshire was a case in which a Jehovah’s Witness upset others after allegedly denouncing the religions of these others as a “racket.” When Chaplinsky was approached by a marshal, the marshal testified that Chaplinsky cursed him and called him a “damned fascist.” The court stated that “Free Speech is not absolute at all times and under all circumstances.” The court determined that lewd, obscene, profane, libelous, or insulting words “… uttered to inflict injury or which tend to incite an immediate breach of the peace” are not protected speech. Thus, the Fighting Words Doctrine was born.
While the United States Supreme Court has essentially discarded the Fighting Words Doctrine, many of the lower courts continue to rule on and uphold it, especially in disorderly conduct, breach of the peace, or harassment cases.
If you are seeking a list of Fighting Words to Avoid Using, there is none. The definition of Fighting Words depends on how a word is used, and to whom it is addressed. Courts have decided that the Fighting Words Doctrine is a means to prevent immediate violence. So I urge you to be prudent in the use of colorful language – especially when you are speaking with certain people and in certain circumstances. Your utterance may not be protected speech, and it could get you arrested.