Arresting a person for profanity often violates the First Amendment

  Law enforcement officials should not assume that uttering profanity rises to the level of unlawful disorderly conduct. That is a lesson from a recent decision from a federal appeals court involving an Arkansas man thrown in jail for yelling a two-word expletive at an officer.

  Eric Roshaun Thurairajah was driving on a five-lane highway in Fort Smith, Ark., when he saw a police officer pulling over a minivan on the opposite of the road. The minivan contained a woman and two young children.

  Thurairajah yelled “F— you” out his car window at State Trooper Lagarian Cross. Cross responded by getting in his vehicle and arresting Thurairajah for disorderly conduct because of “unreasonable or excessive noise.”  The Arkansas law provides: “A person commits the offense of disorderly conduct if, with the purpose to cause public inconvenience, annoyance, or alarm or recklessly creating a risk of public inconvenience, annoyance, or alarm, he or she makes unreasonable or excessive noise.”

  Thurairajah spent several hours in jail, but the state dropped all of the charges against him. He, in turn, filed a federal lawsuit against Cross in federal court, alleging a violation of his First Amendment right to free speech.

  Cross argued he was entitled to qualified immunity — a defense that protects government officials from liability if they violate clearly established constitutional law. However, a federal district court denied Cross qualified immunity.

  On appeal, a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit affirmed in its June 3, 2019 decision in Thurairajah v. City of Fort Smith that the key to the case is individuals often have a First Amendment right to utter profanity — even directed at police officers.

  No less an authority than the U.S. Supreme Court established in Cohen v. California (1971) that government officials cannot punish a person simply because he or she expresses profanity. In Cohen, a man wore a jacket bearing the words, “F— the Draft” in a California courthouse. The Court warned that “governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.”

  In City of Houston v. Hill (1987), the Court ruled that individuals have a First Amendment right to verbally challenge police officers. The court reasoned that the “freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

  The Eighth Circuit panel operated from a similar mindset, recognizing that profanity does not automatically equate to disorderly conduct. In fact, the appeals court panel noted that in no Arkansas cases “has a two-word unamplified outburst constituted disorderly conduct.”

  The bottom line was that the trooper retaliated against Thurairajah because the trooper was offended by the profanity.

  That doesn’t cut it in a free society that respects First Amendment principles.

  About the author: David L. Hudson Jr., a visiting associate professor of Legal Practice at Belmont University College of Law, is a First Amendment attorney and author who has written, co-written, or co-edited more than 40 books, including “The First Amendment: Freedom of Speech” (Thomson Reuters, 2012) and “Documents Decoded: Freedom of Speech” (ABC-CLIO, 2017).

  This article was published by the Freedom Forum Institute.