David L. Hudson, Jr.: Federal appeals court upholds South Carolina anti-profanity law

  You better not curse within hearing distance of a church or school in South Carolina. That’s because the state has a law that specifically bans such profanity.

  Krystal Johnson challenged the constitutionality of the law after she was arrested for breaking it.   Johnson had called the police to have their assistance in obtaining car keys from a family member. When a police officer responded, Johnson was within 50 to 60 yards of a church. She allegedly said: “[t]his is some motherfucking shit.” The officer arrested her for violating the anti-profanity law.

  After a criminal court dismissed the charges, Johnson sued in federal district court, contending the anti-profanity law was both too broad and too vague. The district court ruled the law was constitutional. Johnson then appealed to the 4th U.S. Circuit Court of Appeals, which also ruled against her.

  The appeals court reasoned that the law was constitutional because it only prohibited “fighting words” defined by the U.S. Supreme Court in Chaplinsky v. New Hampshire as words which by their utterance or inflict immediate injury or cause an immediate breach of the peace.

  A three-judge panel of the 4th Circuit reasoned in Johnson v. Quattlebaum that the South Carolina law was not too broad because it only punished fighting words. The appeals court panel also determined the law was not too vague because the statutory term of “hearing distance” limits where the statute applies.

  This ruling is troubling. The South Carolina statute on its face prohibits profanity near a church or a school. Obviously, much profanity does not cross the line into unprotected fighting words.  Look at Johnson’s profane speech. She was not cursing directly at an officer. She merely was upset at the stressful situation she was facing.

  An interesting question is whether the fact that the statute singles out profanity near a church raises special problems under the First Amendment. It certainly makes the statute content-based under First Amendment law.  

  Last year, the 8th U.S. Circuit Court of Appeals in Survivors Network by Those Abused by Priests v. Joyce invalidated a law that prohibited using profane language to disrupt a house of worship. The 8th Circuit recognized the law was a content-based restriction on speech that could be used to silence offensive expression and ideas.

  The 4th Circuit’s decision shows that many anti-profanity laws still exist on the books. As I mentioned in a 2009 article, the use of profanity can still lead to criminal charges.

  About the author: David L. Hudson, Jr. is the author of First Amendment: Freedom of Speech and co-editor of The Encyclopedia of the First Amendment.

  This article was published by the Newseum Institute.