Can you be arrested for cursing at a cop?
What about using profanity in public, criticizing a police officer, or flipping someone off?
If you are arrested for expressing your opinion – whether it involved using profanity, flipping off a police officer, or complaining about how a cop is doing their job, you may have a civil rights lawsuit for violation of your First Amendment rights.
Below, we will look at First Amendment claims for unlawful arrests, including:
- Whether you can be arrested for cursing in public or cursing at a cop,
- State laws and local ordinances that may be unconstitutional,
- The “fighting words” exception to First Amendment claims, and
- SC and US Supreme Court opinions that define the fighting words exception.
Can You be Arrested for Cursing at a Cop?
Of course, you can be arrested for cursing at a cop.
The real question is 1) whether you can be convicted and 2) whether you have a civil rights claim for violation of your First Amendment (freedom of expression) and Fourth Amendment (freedom from unreasonable seizure and arrest) rights based on an unlawful arrest…
Police know that they cannot arrest people who criticize them or curse at them – the US Supreme Court’s first opinion on this was 80 years ago, and police officers receive First Amendment training at the Academy.
If you are charged with public disorderly conduct or a similar law because you were using profanity, complaining about a police officer, or engaging in any type of expression protected by the First Amendment, you might have a civil rights claim against the officer, but, first, your attorney must:
- Get your criminal charges dismissed or win an acquittal in a jury trial,
- Determine whether there was another charge that you were guilty of or that you could have gone to jail for (if you would have been arrested on another charge you don’t have a damages claim),
- Determine whether the officer is entitled to qualified immunity (possible but not likely, because both SC and the US Supreme Court have long held that wrongful arrests that violate the First Amendment are actionable), and
- Determine whether you are likely to recover damages from a jury based on the facts of your case.
Disorderly Conduct or Contempt of Cop?
Cops arrest people in violation of the First Amendment often enough that we have a name for it – contempt of cop.
If you are in court and you are disrespectful to the judge, you can be taken into custody and charged with contempt of court. There is no such thing as contempt of cop, though. Despite this, police have the uniform, badge, gun, and authority to put people in jail.
When someone is disrespectful to them, some cops will punish the person, teaching them a lesson by locking them in jail for a night or two…
Unconstitutional Laws that Violate the First Amendment
Any time a police officer arrests someone solely because they were expressing an opinion – even if it involves profanity directed at the officer, it is a violation of the First Amendment.
SC, however, has several laws that are either 1) facially unconstitutional or 2) unconstitutional as applied to specific situations, including:
- Public disorderly conduct,
- Breach of peace,
- Failure to obey, or
- Interfering with an officer.
SC’s Public Disorderly Conduct Law
SC Code § 16-17-530 is the law most used to charge people with “contempt of cop.”
You can be charged with disorderly conduct if you are found in a “grossly intoxicated condition” in public – this is constitutional and you can be convicted of disorderly conduct for gross intoxication in public, even if you are also criticizing a police officer at the time.
The statute also makes it a crime for a person to “conduct himself in a disorderly or boisterous manner” or to use “obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church.”
This second part is the language that police rely on when they arrest a person for cursing in public, for cursing at the officer, or for criticizing the officer – and the US and SC Supreme Courts have made it clear for decades that this is a First Amendment violation.
Charleston, SC’s Public Disorderly Conduct Ordinance
Charleston, SC also has a public disorderly offense found in municipal code § 21-09.
Charleston’s disorderly conduct ordinance contains disclaimers that should make the code section constitutional, like: “This section shall not be construed to suppress the right to lawful assembly, picketing, public speaking, or other lawful means of expressing public opinion not in contravention of other laws.”
Despite this, when a Charleston, SC police officer arrests someone and charges them with disorderly conduct solely for protected expression, it is unconstitutional and the officer may be subject to a civil rights lawsuit under the SC Tort Claims Act or 42 USC § 1983.
Cursing at a Cop/ Profanity in Public or “Fighting Words?”
There is a “fighting words” exception to the First Amendment – if a person’s words or conduct rises to the level of “fighting words where there is a likelihood that the utterance would provoke an immediate violent response,” there is no First Amendment protection and there is no civil rights claim against the officer if you are arrested.
When someone is arrested for cursing at a cop, using profanity in public, or otherwise expressing themselves without the use of fighting words, there is no qualified immunity for the officer because 1) there are hundreds of cases on this, dating back to a 1942 US Supreme Court opinion, and 2) police receive First Amendment training on this subject.
Case Law on Fighting Words and the First Amendment
There are many, many cases in both federal and state courts regarding the constitutionality of disorderly conduct, breach of peace, and interfering with officer statutes, your right to sue for violation of your First Amendment rights, and the fighting words exception.
I have included a selection of US and SC Supreme Court opinions below.
US Supreme Opinions
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) – a breach of peace statute was held to be constitutional because the state’s appellate opinions limited the statute’s effect to conduct that rose to the level of fighting words.
Gooding v. Wilson, 405 U.S. 518 (1972) – a breach of peace statute was held to be unconstitutional because its effect was not limited to fighting words.
Norwell v. Cincinnati, 414 U.S. 14 (1973) – a person can criticize the police as long as it does not rise to the level of fighting words.
Lewis v. New Orleans, 415 U.S. 130 (1974) – a breach of peace statute was held unconstitutional because it was not limited to fighting words.
Houston v. Hill, 482 U.S. 451 (1987) – verbal criticism and challenges to police officers are protected under the First Amendment, and the “interfering with police officer” statute was held to be unconstitutionally overbroad.
SC Appellate Opinions:
State v. Perkins, 306 S.C. 353 (1991) – SC’s disorderly conduct statute was held to be unconstitutional when applied to persons who raised their voices while complaining to law enforcement.
City of Columbia v. Brown, 316 S.C. 432 (Ct.App.1995) – racial slurs are fighting words and are not protected by the First Amendment.
State v. Pittman, 342 S.C. 545 (Ct.App.2000) – a person cannot be arrested for disorderly conduct for cursing at a police officer or for complaining to a police officer, but they can be charged with disorderly conduct for gross intoxication in public.
Landrum v. Sarratt, 352 S.C. 139 (Ct.App.2002) – calling someone’s mother a bi*** constitutes fighting words and is not protected under the First Amendment.
In Re Jeremiah W., 361 S.C. 620 (2004) – disobeying an unlawful command or saying “f*** you” to a police officer are not fighting words and are protected under the First Amendment.
State v. Bailey, 368 S.C. 39 (Ct.App.2006) – argumentative, loud, and boisterous conduct in public is protected under the First Amendment.
Arrested for Cursing at a Cop or Profanity in Public?
The Charleston, SC civil rights attorneys at the Boles Law Firm can help you to fight the criminal charges, determine whether you have a civil rights claim against the police, and recover the maximum compensation that you are entitled to under SC and federal law.
Call us at 843-576-5775 to schedule an appointment for a free consultation at our North Charleston or Walterboro offices or send us a message through our website