Mouthing off at or in the presence of police officers might not be a good idea, but it’s not necessarily a crime. As discussed recently in this blog (An Actual Example of Free-Speech Infringement), the First Amendment prevents the government from punishing most forms of speech. In general, as long as they don’t get violent and don’t incite a potential breach of the peace, people can say what they want in public. They can even throw in a few four-lettered words if they like. (For more on the line between protected and unprotected speech, see Can I be arrested for yelling or swearing at a cop?)
Occupying First Amendment Territory
The Occupy movement has provided a testing ground for First Amendment freedoms. Riled-up protesters took to the streets throughout the country from 2011 through 2012 with police officers often standing immediately by. Sometimes officers carried out obviously legitimate arrests, such as where violence and property damage were involved. Other times they clearly overstepped their bounds, as was the case with the UC Davis pepper-spray incident. But as always, there was a middle ground, and that’s where the law gets interesting.
Arrested for Speech
A federal judge recently denied the government’s request that she throw out a lawsuit by an Occupy DC protester relating to his arrest at the hands of federal park officers. (Zoe Tillman, “Protester's Claim of Unlawful Arrest for Profanity Can Proceed,” The Blog of Legal Times, December 20, 2013.) The plaintiff claimed that the officers arrested him simply for using profanity.
The protester’s complaint alleged that he was in McPherson Square on January 8, 2012, near two other Occupy protesters and several police officers. He saw three teenagers walk into the park toting signs in support of the Tea Party movement. He looked upwards and said, “Ah, this is fucking bullshit” at a moderate volume, indicating simple annoyance. The Tea Party supporters were approximately seven feet away from him at the time of the comment; they didn’t even look his way. Several officers then approached him.
One officer told the protester not to use profane language. He responded with, “I can’t say 'fuck'?” The officer issued a second warning, to which the protester replied, “That’s fucking bullshit.” At that point, the officer ordered his colleagues to arrest his cheeky interlocutor, which they did. The prosecution filed disorderly conduct charges against the protester, only to drop them a month later.
Adopting the plaintiff’s version of events for purposes of the government’s motion to dismiss, the judge found no evidence that the speech in question might have provoked violence. Therefore, there was no probable cause for the arrest, essentially meaning that the lawsuit can proceed.