Kansas criminal defense attorney, I have had numerous cases where my client was being prosecuted for getting
too rowdy or yelling profanity. They get charged with the ambiguous disorderly
conduct. That's when a Constitutional argument over the First amendment
is in order.
During the seventies, the United States Supreme Court Supreme Court clarified
that profanity, as part of a political message, is Constitutionally protected
speech. In Cohen vs. California, the Supreme Court stated that it was
Constitutional for a person to walk through the courthouse wearing a jacket
that said "Fuck the Draft." However, there have been other cases
where, the Court seemed to indicate that some profanity could be prosecuted,
if it wasn't specifically connected to a political message. Even so,
the Court has overturned convictions and allowed profanity even when not
connected to a specific message. In those cases, the Court said that the
governmental intrusion wasn't allowed because they had not met its
heavy burden of showing how protected speech would be honored and there
would be no chill factor. The reality is, that it is unlikely that the
government could both write law prohibiting profanity, while at the same
time relying how speech wouldn't be curtailed.
Interestingly, the Supreme Court has upheld regulation against profanity
on broadcasts like radio and tv. When it comes to the internet, more freedom
is allowed. When the Supreme Court ruled unconstitutional, the Communications
Decency Act, in 1997, it stated that you can be indecent, but not obscene…
whatever that means.
Individually, I rarely swear and generally try to speak in an uplifting
respectful manner. However, in the United States of America, I would support
someone else's right to free speech, even if I disagree with their
message or even the profanity they may use to express it. As a lawyer
who has seen the government in action, I am wary to entrust the government
to tell people what they can or can't say.
One extreme example would be the deceased Fred Phelps. Personally, I feel
that his speech is deplorable and sick. However, I would support his right
to free speech. If you support free speech, you can't pick and choose
what should be protected based on what speech you agrre with individually.