David L. Hudson, Jr.: Mass. official urges town to rethink profanity ban

  The town of Middleborough, Mass., should repeal a provision passed last June that empowered police officers to issue civil tickets for cursing in public, the state’s attorney general has determined.

  In 1968, Middleborough passed a disorderly conduct byline regulating public profanity. It provides: “Whoever having arrived at the age of discretion accosts or addresses another person with profane or obscene language in a street or other public place, may be punished by a fine of not more than $20.00 dollars.”

  As The Boston Globe reported, the law was rarely enforced. Prosecutors simply did not pursue criminal charges and prosecute people for profanity. In June, residents at a town meeting voted 183-50 for a proposal that decriminalized the measure, meaning that the police could issue civil citations to people uttering profanity in public.

  Attorney General Martha Coakley issued an opinion this week urging the town to desist from issuing civil citations for profanity in public. Coakley questioned the underlying 1968 profanity bylaw, but cautioned that state law prohibited her from simply striking the words “profane or” from the bylaw: “However, because we have no current authority to strike these words from the by-law, we can only strongly urge the Town not to use the new non-criminal disposition enforcement mechanism adopted by Article 24 to enforce the 1968 by-law against speech which is merely ‘profane.’”

  Coakley said that the 1968 bylaw itself was problematic, noting that “profanity is protected by the First Amendment.”

  Former town Selectwoman Mimi Duphily told the Associated Press that it wasn’t clear what the impact of Coakley’s opinion would be or if it might prompt repeal of the 1968 bylaw.

  Duphily defended the town’s crackdown on profanity, telling the AP: “This has nothing to do with freedom of speech. This is about verbal assault.”

  Meanwhile, Emalie Gainey, spokeswoman for Coakley, told the First Amendment Center: “Before us was a measure passed by the town to supplement enforcement of seven existing bylaws, including the town’s 1968 profanity bylaw. We found this new enforcement measure to be generally consistent with state and federal law. However, we have determined that some of the underlying bylaws passed more than 30 years ago no longer meet constitutional standards and those bylaws should be repealed by the town, and in the meantime, not actively enforced.”

  The AP reported that Coakley questioned two other bylaws, asking the town to reconsider “a 1972 measure against the making of an ‘alarming or tumultuous noise,’ and an antiquated 1927 bylaw that prohibited, among other things, throwing snow balls or playing football on a public street.”

  The Massachusetts attorney general employed sound reasoning in analyzing the profanity measure. She accurately noted that the underlying 1968 ordinance created First Amendment problems by criminalizing profane language. As Ken Paulson, First Amendment Center president, told The Wall Street Journal in June, the law is not narrowly tailored and way too broad.

  A broad ban on profanity violates fundamental free-speech guarantees. Profanity can be prohibited, but only if it is part of a true threat, constitutes fighting words or incites imminent lawless action.

  About the author: David L. Hudson Jr. is a scholar at the First Amendment Center.

  This article was published by the First Amendment Center.