John Whitehead's Commentary
Cursing: How Far Should Free Speech Stretch?
Now Richards is being charged under a 102-year-old Michigan law that prohibits cursing in the presence of women or children. If convicted, he could face a 90-day jail sentence. But would such a conviction violate his First Amendment rights to free speech?
Another Michigan man, Timothy Boomer, a 26-year-old computer programmer, faced prosecution under the same law earlier this year. After tumbling out of his canoe while paddling down the Rifle River, he turned loose a string of profanities within earshot of women and children also on the river.
At his trial, Boomer challenged the law on constitutional grounds. But a judge upheld the law, sentenced Boomer to work four days in a child-care program and fined him $75. Boomer has since appealed his conviction.
Of course, it will be argued that Richards' case is weaker than Boomer's, at least to the extent that Richards knew children were within hearing range and Boomer didn't. Nevertheless, Richards' case still raises important First Amendment questions.
As with many hard constitutional cases, the ones in Michigan involve a delicate balancing act. On the one side are the cherished protections of free speech, a uniquely American right that has been fiercely guarded since the early days of our republic when sedition laws threatened to tear our fledgling union apart at its political seams. But on the other side are impressionable children, young minds that we do not want to clutter with the vulgar realities of the adult world.
This balancing act is not unique to Michigan. We face the same issues when we restrict certain speech in schoolhouses that may be disruptive to the learning environment. We face them when the courts refuse to allow abortion protesters within certain public spaces. In all these situations, the constitutional right to free speech is offset by the interests of students, abortion clinic patients and workers or other citizens who claim their own rights are threatened by the particular speech at issue.
Unfortunately, in most of these cases courts assign too much weight to these "other interests." In the schools, courts uphold "zero tolerance" policies that are applied in a way that severely restricts student speech, allegedly in the name of preserving the learning environment. Abortion protesters have their free speech rights curtailed, despite the clear First Amendment freedoms they practice.
I, for one, think we should pay closer attention to the First Amendment freedoms at stake in these cases. Michigan is just one more example of a situation where the courts need to recognize that while other interests may be in play, the right to free speech is fundamental to our Constitution. Without it, we lose much of what we cherish about America -- the right to speak freely about the issues of the day, criticize public officials and express our beliefs and emotions in ways unique to ourselves.
And if the people of Michigan are concerned that their children may hear curse words, then they will have to turn off the television and keep their kids from reading books and seeing movies. Unlike the era when the Michigan cursing law was written, times have changed drastically and cursing is virtually everywhere.
Any one case may not seem important. The facts of a particular situation, such as those surrounding Jeffery Richards' admittedly ill-conceived words, may not stir our sympathies. But it is precisely in these "bad cases" that we must be careful to preserve the precious freedoms protected by the First Amendment.
ABOUT JOHN W. WHITEHEAD
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.
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