Public Vulgarity and Free Speech

2012-08-21 11:17:14

Although speech that meets the legal definition of obscenity can be proscribed by the state, the public utterance of words that are merely profane or vulgar is generally protected by the First Amendment. This was established in the landmark case of Cohen v. California (1971), in which the Supreme Court overturned the breach-of-the-peace conviction of a man arrested in a Los Angeles courthouse for wearing a jacket emblazoned with the words ‘‘Fuck the Draft.’’ While acknowledging that the jacket displayed an ‘‘unseemly expletive,’’ the Court held that the First Amendment strictly limits the government’s ability to remove ‘‘unseemly’’ words from public discourse. This is so, Justice John Marshall Harlan II reasoned in his opinion for the Court, because the First Amendment requires that questions of taste be left in the hands of individuals and not dictated by the state. It would be impossible for the government to distinguish objectively between offensive and nonoffensive speech because, in Justice Harlan’s words, ‘‘one man’s vulgarity is another man’s lyric.’’

Additionally, the Court recognized that the First Amendment protects the emotional as well as the rational content of public communication, noting that ‘‘words are often chosen as much for their emotive as their cognitive force.’’ Audience members who object to vulgar language in public places must learn to avert their eyes, the Court concluded.

Similarly, the Court held in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), that the publication of an insulting parody of a public figure was protected by the First Amendment. The Court stated in its unanimous decision that the ‘‘fact that society may find speech offensive is not a sufficient reason for suppressing it.’’

Crude remarks meant to provoke a violent response from the listener are theoretically regulable if they rise to the level of ‘‘fighting words,’’ which the Supreme Court held are unprotected by the First Amendment in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Since Chaplinsky was decided, however, the Court has taken an extremely narrow approach to the fighting words doctrine, holding in later cases that it applies only to words likely to cause an immediate breach of the peace uttered in face-to-face encounters. Merely vulgar or distasteful language would rarely, if ever, qualify under this definition of fighting words.

In certain situations involving captive audiences, the Court has allowed the government to protect unwilling listeners from public vulgarity. For example, in FCC v. Pacifica Foundation, 438 U.S. 726 (1978), the Court upheld an FCC order requiring broadcasters to limit nonobscene, ‘‘indecent’’ programming to late-night hours. The Court based its decision on what it termed the ‘‘pervasive’’ nature of the broadcast media, which intrudes into private homes, as well as on broadcasting’s accessibility to children. Members of a captive audience cannot simply close their eyes or ears when confronted with vulgar speech, according to the Court. Rather, Justice John Paul Stevens wrote that ‘‘[t]o say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.’’


References and Further Reading

  • Bezanson, Randall P. Speech Stories: How Free Can Speech Be? New York: New York University Press, 1998.
  • Hentoff, Nat. Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. New York: Harper Collins Publishers Inc., 1992.
  • Kalven, Harry Jr. A Worthy Tradition: Freedom of Speech in America. New York: Harper & Row, Publishers, 1988.

Cases and Statutes Cited

  • Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  • Cohen v. California, 403 U.S. 15 (1971)
  • FCC v. Pacifica Foundation, 438 U.S. 726 (1978)
  • Hustler Magazine v. Falwell, 485 U.S. 46 (1988)

See also Campus Hate Speech Codes; Hate Speech; Threats and Free Speech