Fined for cursing a cop?

August 13, 3:04 PMCivil Liberties ExaminerJ.D. Tuccille

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Sir Robert Peel, the father of modern police forces, may be best remembered for specifying that law enforcement officers should never hold higher status than members of the public they serve, "police being only members of the public who are paid to give full-time attention to duties which are incumbent upon every citizen." Increasingly, though, government officials demand deference to their uniformed enforcers by the citizenry. Take, for example, a proposed (and constitutionally suspect) ordinance in Kenosha, Wisconsin, that would fine anybody who swears at the cops.

Alderman Patrick Juliana describes "being a law enforcement officer" as "the toughest job in the world." ("Tough" is a vague term, but as I've written before, police work is a dangerous job, but not, by any means, the most dangerous.) That, says the elected official, is why people should be fined $118 if they continue to swear at police after a warning.

The proposed ordinance fails to pass muster on two important grounds: First, it violates the old principle, established by Peel, that police officers are just common citizens entitled to only the same powers and protections that everybody else possesses. Unfortunately, this principle is probably a dead letter these days, as police gain protected status and special powers.

So, perhaps more import should be attached to the second objection, which is that Alderman Juliana's fines for cop-cursers almost certainly violate a history of court decisions regarding speech protected by the First Amendment.

As recently as December 30, 2008, the South Dakota Supreme Court ruled (PDF) that Marcus Suhn was well within his rights to drop the F-bomb on officers in a passing patrol car in front of a crowd emptying from bars at closing time. Wrote the court:

Just because someone may have been offended, annoyed, or even angered by Suhn’s words does not make them fighting words. As offensive or abusive as Suhn’s invective to the police may have been, “when addressed to the ordinary citizen,” Suhn’s words were not “inherently likely to provoke violent reaction.”

The "fighting words" standard referred to in South Dakota was established by the U.S. Supreme Court in 1942 as something of an exception to the First Amendment, but the high court has been backpedaling from it ever since, and reasserting broader protections for even the most provocative speech directed at police. The First Amendment Center points out, "In later decisions — Gooding v. Wilson (1972) and Lewis v. New Orleans (1974) — the Court invalidated convictions of individuals who cursed police officers, finding that the ordinances in question were unconstitutionally overbroad."

This isn't to say that cursing at police officers is a nice thing to do, but it's certainly constitutionally protected.

If Kenosha goes through with its plan to fine people who direct harsh words at police, the city itself is likely to pay far stiffer penalties than anybody who mouths off at local law enforcement.

email J.D.: civilliberties (at) tuccille.com