Matthew R. Segal, legal director of the ACLU of Massachusetts, originally wrote this guest blog for Boston.com.
Some laws are good, some are bad, and some are just @!#$! ridiculous. A new anti-swearing provision passed by the town of Middleborough falls into that last category.
On Monday night, Middleborough voted to allow police officers to write $20 tickets to enforce the town's longstanding ban on addressing anyone in public using profanity. The profanity ban is clearly unconstitutional because the Supreme Court has held that a government cannot ban public speech just because it contains profanity. In Cohen v. California, a man was arrested for disturbing the peace after he went out in public--in fact, he went to a courthouse!--wearing a jacket bearing the words "Fuck the Draft." The Supreme Court held that he had a First Amendment to wear the jacket, noting that "one man's vulgarity is another's lyric."
The citizens of Middleborough have the very same right to swear in public. In fact, some of the town's citizens have already begun swearing in protest, and they would win a court challenge if the town tried to enforce its bylaw against them.
But Middleborough's bylaw isn't just a threat to the First Amendment; it's also about the abuse of power. By authorizing swearing tickets--which relieve officers of the burden of bringing formal criminal charges--Middleborough has allowed individual police officers to decide which profane speech is worth fining and which isn't.
Americans, however, shouldn't have to watch what they say around police officers. In fact, swearing at police officers is almost certainly protected by the First Amendment.
Police officers in Middleborough should spend their time policing crime, rather than speech. But if they insist on trying to fill the town's swear jar, the courts will surely tell Middleborough to, umm, buzz off.