Can You Be Arrested For Cursing At The Police?
Perhaps the real question here should be where does free speech end and criminal conduct begin? In examining this question, it turns out that the facts and situation involved will determine the answer.
Where you are, what you say, and how you say it all matter in the analysis.
The basic rule is that people are allowed to call the police names, even really unpleasant ones. It is in the surrounding circumstances that sometimes, speech crosses over into unprotected territory.
Free speech cases can be surprisingly complicated. This is an area of specialty in criminal defense. Some attorneys specialize in first amendment criminal defense cases. Often other criminal charges are brought, such as assault or battery on a peace officer when the issue is really one of free speech. In this time of divisive politics and protests, the right to free speech seems more important than ever.
The Right to Free Speech is Limited
We all think that the First Amendment right to free speech is the bedrock of our society, and so, unlimited. The First Amendment right to free speech is a bedrock principle of our society, but it is limited. Not all speech is protected.
Speech that incites violence in another or in a crowd is not protected. Those are considered “fighting words” and, as such, are not protected.
Neither is obscenity, speech related to criminal activity, threats, fraud, or commercial advertising. Cursing at police, in and of itself, does not fall in the category of unprotected speech.
However, it depends on what is said. When cursing at the police contains threats, it is no longer protected speech. Therefore, while calling the police a name is protected, threatening to “get you” may not be.
That may be construed as disorderly conduct or criminal threat. The speaker may be arrested. Many times, these arrests are made on charges of disorderly conduct. Therefore, it is very handy for the defendant to have a recorded video account of what was said and what was done. In the absence of a video, witnesses can help substantiate your side of the events.
Cases Help Understand Limitations, To an Extent
Flipping off a police officer, while considered rude, is protected speech. Ranting and raving expletives at police has been held to be protected speech. In that case, the defendant, Richard Gonzales, ranted and raved at the police. Police searched him as a result. They found a weapon. He was arrested for disorderly conduct and gun possession. The conviction was overturned.
In contrast, when “fighting words” are used, the speech is not protected. Fighting words are words that tend to incite immediate violence or breach of the peace. In some ways, this standard appears to be subjective. In the landmark case, Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the utterance “You are a God-damned racketeer” and “a damned Fascist” were deemed to be fighting words and not protected.
However, in a contrasting case, Cohen v. California, 403 U.S. 15 (1971), the Supreme Court held that a man’s jacket with the words “Fuck the Draft” were not “fighting words” and constituted protected speech. This divergence of case law has led to wildly differing results in lower court case opinions. Thus, the line between protected and unprotected speech is thin.
Calling the police names when coupled with a gesture that may be interpreted as threatening may cause the status of protected speech to be lost. The court may look at the whole rather than at discrete parts and determine that when taken as a whole, the speech was threatening.
Since the bill of rights is meant to protect individuals from the actions of government officials, free speech generally does not extend to private places. However, the California Constitution has a broader right to free speech than does Federal law. In California, the right to free speech extends to private places.
This includes shopping malls. In Fashion Mall vs. NLRB, the District Court held that union protestors at a mall were allowed to distribute leaflets advocating a boycott as protected speech. The mall was privately owned.
Local Laws and Ordinances May Vary
Local laws sometimes vary quite a bit from what is deemed protected speech. For example, local law in Fairfax, Virginia, prohibits profanely cursing or swearing in public. The law is still on the books and is considered to be a Class 4 misdemeanor.
This area of the law remains murky and cases are fact-bound. It remains the case that many free speech violations occur in the guise of charges of disorderly conduct. It is important that people remain clear-headed in conflicts with the police. This includes acting in non-threatening ways when interacting with police.
When interacting with the police, take videos if at all possible. And if arrested, speak with counsel as soon as you are able.
Last Updated on December 18, 2020