It’s Totally Legal to Yell ‘Fuck You’ at Cops. Why Are People Getting Arrested?

So why do people keep getting arrested?
saying-fuck-the-police-is-constitutional-legal

When cops confronted Michael Wood while wearing his “fuck the police” T-shirt at a local county fair in Dayton, Ohio, six years ago, he tried to explain he was well within his rights. He even removed the shirt. 

But the officers still asked him to leave. One even allegedly pushed his shoulder as he made his way toward the exit.

“Look at these thugs with badges behind me. How many is there?” Woods asked as the officers continued to escort him out of the fair, according to the lawsuit he filed against them in May 2018. “One, two, three, four, five, six motherfuckers. Six bitch ass fucking pigs. Fucking thugs with guns that don’t uphold the United States Constitution.”

Woods was arrested for disorderly conduct and obstructing official business for his rant, both of which the local prosecutor dismissed. And now, the U.S. Court of Appeals for the Sixth District ruled that Woods did nothing illegal, regardless of the harsh words directed at officers.

Woods’ encounter with cops has repeatedly played out across the U.S.: Cops arrest someone for swearing at them, in some form, and virtually every time, a court vindicates the civilian. The Supreme Court has even repeatedly upheld civilians’ right to use profanity, even directed at law enforcement officers. 

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“Cops are supposed to be able to tolerate criticism under the First Amendment and that’s been found in cases going way back,” Pamela Marsh, the executive director of the First Amendment Foundation, told VICE News. “Indelicacy no longer places speech beyond the protection of the First Amendment. Profanity alone is insufficient to establish criminal behavior.”

Whether words lead to violence is actually an important test of the First Amendment created by the Supreme Court in 1948, when Walter Chaplinsky, a Jehovah’s Witness, was arrested after a crowd listening to him speak began to riot.

During his arrest, Chaplinsky called the arresting officer and local government “fascists” and a “damned racketeer.” Though Chaplisky eventually lost his claim that officers were limiting his freedom of speech, the Supreme Court created the “fighting words doctrine” in deciding the case, which explains that words meant to or with the potential to incite violence aren’t protected by the First Amendment.

“It may be offensive, and maybe stuff all of us hate to hear, but as a governmental entity, you have no power to regulate it just because you're offended by it.”

That standard has continued to evolve in the high court. Most notably in 2002, Greene v. Barber determined that officers should be better prepared to show restraint when confronted with harsh words by the general public.

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That’s why Woods recently won his case.

“Police officers are held to a higher standard than average citizens because the First Amendment requires that they ‘tolerate coarse criticism,’” the Sixth District U.S. Court of Appeals wrote in its decision on Feb. 8. “While Wood’s speech was profane, the circumstances did not create a situation where violence was likely to result. None of the officers reacted with violence or appeared to view Wood’s words as “an invitation to exchange fisticuffs.”

Yet despite the long and clear history of the courts ruling that it’s totally legal to swear at the police, people keep getting arrested.

As recently as 2020, two Baytown, Texas men were arrested after they cursed at officers arresting their friend who had violated an unspecified traffic law. The officers who initiated the arrest were eventually put on desk duty and investigated.

Later that year, a Slidell, Louisiana, the father was arrested for disturbing the peace after he used expletives while reprimanding his 4-year-old son and then cursed at police officers while defending himself. And in what was probably the most high-profile example in 2009, Al Sharpton’s daughter and ex-wife were arrested in New York City for cursing at officers during a traffic stop. Five months later, those charges were dropped.

As the United States continues to grapple with the broad powers granted to police—and the way officers have abused them, especially when interacting with people of color—some red cities and states have made moves to protect the police. Last year in Nassau County, Long Island, a first-of-its-kind law would have given cops and other first responders the right to sue anyone who harasses or annoys them, on top of hefty fines already levied against the offender from the state. Ultimately, the bill was vetoed by the county executive. 

Police officers also sometimes use broad disorderly conduct or disturbing the peace charges to arrest someone who’s sworn at them. But that's unconstitutional, according to Andrew Geronimo, Director of the First Amendment Clinic at the Milton A. Kramer Law Clinic Center.

“It may be offensive, and maybe stuff all of us hate to hear, but as a governmental entity, you have no power to regulate it just because you're offended by it,” Geronimo told VICE News. “And that’s where some of the tension between local municipalities and the federal government arises. In some areas, laws may have been passed before the Supreme Court clarified that offensive speech is protected and can’t be regulated.” 

But pursuing legal action against police or to void an arrest can take years to see any results, if they happen at all. In many cases, the reputation that police officers hold supersedes most people’s desire to challenge what’s getting them in trouble with the law. And that’s if they recognize their rights are being violated in the first place.

“Whether it’s through movies or pop culture or what our parents taught us, there's this aura of authority that the police have,” Marsh said. “Asserting yourself contrary to that is just not advised. In the worst of cases of doing so, it can lead to dangerous results, which we’ve seen over and over again in recent years.”

Civilians without a proper understanding of the First Amendment aren’t the only ones responsible for the disconnect though. Police officers are sometimes just as clueless, according to Dr. Thaddeus Johnson, a criminal justice professor at Georgia State University and a former Memphis police officer for 10 years.

“Most departments will say you can’t just arrest people for cursing them out. But that’s just a small piece under the broad umbrella of individual freedoms, which is among the miles of information that they’re expected to retain in the academy.”

Factor in human nature of feeling wronged when disrespected and officers can forget what few core tenets they’re taught about freedom of speech.

“Officers are human, and have feelings,” he said. “They feel like by disrespecting the uniform, you're disrespecting their authority. People talk about how in certain neighborhoods there’s a street code of net letting anyone punk you out. What people don’t understand is there’s a similar code for officers. There’s an attitude that if you let one citizen disrespect you, there can be a cascading effect of letting everyone walk all over you.”

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