A federal judge in New York recently ruled that a man who wrote obscenities on a speeding ticket he was paying could not be criminally prosecuted because his written message was protected by the First Amendment.
William Barboza was stopped by the police in upstate New York in 2012 and given a ticket for speeding. He decided to plead guilty to the ticket and mail his fine to the clerk’s office. On the payment form, he wrote “fuck your shitty town bitches.” The town refused to accept payment and ordered Barboza to report to court. At his court appearance, Barboza was arrested and charged with violating the state’s aggravated harassment law. After the criminal charges were dismissed, Barboza sued the town (ironically named “Liberty”), the prosecutor, and the police officers in federal court, alleging that his arrest and prosecution violated his First Amendment right to speak freely. The judge agreed, ruling last week that the town violated Barboza’s constitutional rights. The assistant district attorney argued that he had immunity from Barboza’s lawsuit, but the judge disagreed and ordered a trial to determine the damages (if any) the assistant district attorney will owe to Barboza. Barboza’s lawsuit against the town will also proceed to trial. The judge did dismiss Barboza’s suit against the two police officers who arrested him, ruling that the officers were reasonably following the order of the assistant district attorney to arrest Barboza. Accordingly the officers are immune from liability.
Courts have consistently held that people have the right to criticize government employees, including police officers, and they have the right to curse while doing so. Earlier this summer, the Washington Supreme Court reversed the obstruction conviction of a juvenile who swore at police officers and called them “pigs” after they responded to his house to investigate a disturbance. While acknowledging that the juvenile’s words might have been disrespectful, discourteous, and annoying, the Court concluded that they were constitutionally protected. Last year Cobb County in Georgia agreed to pay $100,000 to a woman who was arrested and held overnight in solitary confinement for yelling “fuck the police” and giving officers the finger.
The police and other government employees should not be surprised that it is illegal to arrest people for swearing at them. The United States Supreme Court ruled in 1974 that a New Orleans ordinance that criminalized cursing at, or using obscene or opprobrious language toward, police officers was unconstitutional. The Court said that because the law would punish constitutionally-protected speech, it could not stand.
While it may be constitutional to curse at a police officer, it’s not a smart thing to do. Furthermore, depending on the context of the communication, a person who swears at a cop might be committing another crime. For example, in Massachusetts a person can be arrested for being disorderly in public. So while it might be lawful to quietly swear at a police officer during a private conversation, it is probably illegal to scream obscenities at an officer in a crowded public place. The best course of action when interacting with a police officer is to be compliant and respectful. If the officer is violating your constitutional rights, you can pursue legal action at some later time.