Clay Calvert: Telling the police to f*** off is risky First Amendment business

  “Fuck the fucking cops they ant shit but fucking racist basturds.”

  Regardless of whether those “basturds” are inglorious or otherwise, who among us hasn’t wanted, at one time or another, to utter similar stinging sentiments, perhaps in a hasty fit of rage or simply after getting pulled over in a speed trap? Even putative American princess and erstwhile sweetheart Reese Witherspoon has told off the police, rendering her illegally blonde.

  Although perhaps not artfully or eloquently phrased, the sentiments about the cops harbored by Thomas G. Smith in the village of Arena, Wis., were certainly strong when he posted the above-quoted caustic comments on the local police department’s Facebook page about two years ago.

  For those vituperations, he was prosecuted and convicted by a jury of disorderly conduct and unlawful use of a computerized system, both misdemeanor counts.

  But Smith appealed, arguing that the First Amendment guarantee of free speech protected his comments about the police who, after all, are public employees paid by taxpayer dollars. If the First Amendment means anything, it means the people have the right to criticize government officials, even if not in proper or polite English.

  Early this month, Judge Paul Lundsten agreed with Smith and threw out the convictions. Specifically, the judge determined that Smith’s language did not constitute “fighting words.”

  Fighting words are one of the very few categories of unprotected speech in the United States, along with such things as obscenity, child pornography, incitement to violence and true threats.

  Importantly, there is not some official catalog or laundry list of fighting words. Rather, fighting words are generally confined to personally abusive epithets — think racial slurs, homophobic taunts, religious insults — conveyed in face-to-face settings where the audience or target of the speech is likely to swing back. Imagine a baseball manager like the late Billy Martin yelling toe-to-toe at an umpire.

  But just as umpires are supposed to tolerate a certain amount of verbal abuse before giving the manager the heave-ho from the game, so too are police officers expected to stomach a tad more than the average person. As the U.S. Supreme Court wrote in City of Houston v. Hill, “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” It added that “we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them.”

  Smith, of course, is not the first person to test the sometimes-thin skins of police. In a San Francisco case in 2011, a jury acquitted a man who, when asked by an officer for his name, responded, “What if I tell you it’s Fuck You?”

  In a 2008 decision called State of South Dakota v. Suhn, the South Dakota Supreme Court protected the speech of a man who yelled the following at a passing police cruiser as the bars let out around 2 a.m. in Brookings: “Fucking cop, piece of shit. You fucking cops suck. Cops are a bunch of fucking assholes.” In ruling for Marcus J. Suhn, the court wrote that “just because someone may have been offended, annoyed or even angered by Suhn’s words does not make them fighting words.”

  A 2013 decision by the 11th U.S. Circuit Court of Appeals held that the use of a barely audible “fucking asshole” to a law enforcement official was not fighting words and was, instead, protected by the First Amendment.

  Of course, the maxim “don’t try this at home” probably is a good one to remember here. No one is advised to test the scope of First Amendment freedoms in this realm, and certainly yelling at a police officer in a face-to-face situation or when a crowd is present that may be incited to attack the officer are most likely not protected. The right to tell cops off is anything but absolute.

  So, before you administer a little dose of “F You” to the Man, you might think twice about whether you want to fight it out in court.

  About the author: Clay Calvert is a professor in the College of Journalism and Communications at the University of Florida, where he also directs the Marion B. Brechner First Amendment Project. He may be reached at ccalvert[at]jou.ufl.edu. He is a periodic columnist for the Newseum Institute’s First Amendment Center website.

  This article was published by the First Amendment Center.