Profanity and the First Amendment

Editorial by Robert Phillips, Deputy District Attorney (Retired)

Profanity and the First Amendment:  Some of us were brought up in an atmosphere where the use of profanity was severely frowned upon, some believing that its use merely reflects a lack of intelligence and culture, or maybe just bad manners.  For others, expressing oneself through language laced with “bad words” seems to be just a fact of life.  Either way, the courts have been telling us now for some time that the public use of profanity is, under most circumstances, constitutionally protected free speech under the First Amendment.  (See Cohen v. California (1971) 403 U.S. 15, where defendant’s wearing of a jacket in a county courthouse with lettering on the back expressing his discontent over the Vietnam war and the draft—“F__k The Draft”—was held to be protected by the First Amendment.)  We also now know that a person has a First Amendment constitutional right to be critical of the police, even to the point where he or she directs profanity or obscene gestures at an officer.  Such conduct does not constitute “disorderly conduct” or any other form of resisting an officer in the ....