Creating a well-timed and well-phrased barrage of expletives has been around since the beginning of time and those who have mastered the art should be revered as national treasures (George Carlin, rest in peace). Middleborough, Massachusetts does not share this sentiment. Frustrated malcontent Mimi Duphily was fed up with young hooligans dropping the F-bomb near her auto parts store. So she did what any
twat rational, intelligent human being would do- Persuade the city council to permit local police to issue fines to individuals cursing in public.
The current Middleborough ordinance is based on a previous ordinance criminalizing profanity which is rarely, if ever, enforced. Profanity was bundled with a bunch of other “anti-social” behaviors that are now decriminalized. So instead of being charged with a crime, a person who “verbally accosts” someone in public will receive a $20 fine. At first blush this appears mired in abject stupidity because, well, it is. But the denizens of Middleborough are not alone. In fact, it seems states have always been trying to punish naughty words- both civilly and criminally. Typically, the government will try to stamp out profanity by slapping a fine on some poor schmuck for violating a statute or local ordinance that was enacted before women gained the right to vote and hasn’t been enforced for years if it ever was to begin with.
In 1942, the United States Supreme Court held that “fighting words”— words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace” — are not protected by the First Amendment. Chaplinsky v. New Hampshire, 15 U.S. 568 (1942). Then in 1971, the Nine limited Chaplinsky by explaining that wearing a jacket that said “Fuck the Draft” was a “simple public display” as opposed to a direct insult or intent to incite harm. Cohen v. California, 403 U.S. 15 (1971). In the wake of Cohen and related cases (notably, Street v. New York, 394 U.S. 576 (1969)-the flag burning case) the 1970’s through 1990s saw a smattering of cases testing Cohen with little or no success.
By and large, ordinances punishing profanity are nearly always struck down as overbroad, vague, and punishing constitutionally protected speech. See e.g., City of Baton Rouge v. Ewing, 308 So.2d 776 (La., 1975)(Motion to quash charge for using ‘indecent, vile, and profane language’ granted based on the ground that the ordinance was an unconstitutional violation of the First Amendment); and State v. Authelet, 120 R.I. 42, 385 A.2d 642 (R.I., 1978)(Acquittal for person convicted of profanity statute because under fighting words doctrine profanity was not directed at arresting officer). More recently, Michigan tried it in 2002 in People v. Boomer,655 N.W.2d 255 (Mich. App. 2002). A local sheriff ticketed a guy for violating a profanity statute enacted in 1897 that criminalized the use of profane language in front of women and children. The Court of Appeals threw out the conviction and overturned the law, stating that “allowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court went on to note that it would be “difficult to conceive of a statute that would be more vague.”
Abject stupidity aside, the Middleborough city council’s decision is problematic not only because it is extremely vague but also because the ticketing officer is given the discretion to determine the gravity of the profanity. Does the officer’s discretion extend to loud music? “I wasn’t cussing officer; it was Jay-Z, why don’t you send him the ticket?” What about holding a sign that reads, “Fuck you, you fucking fuck” (preferably in front of Mimi Duphily’s store)? The council would have done well to read Cohen ([a statute that] reflects an “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression), and Street, (“We cannot say that [burning the American Flag on a street corner] was so inherently inflammatory as to come within that small class of ‘fighting words’ which are ‘likely to provoke the average person to retaliation, and thereby cause a breach of the peace”). I am waiting on bated breath to see if this ordinance is actually enforced and I can’t help but wonder what the budget of the city attorney’s office is these days.
But the good news is that now we have a name for the fine-issuing machine in Demolition Man- let’s call it the Duphily.