Cursing at a Cop is (Still) Protected Speech

by | Jul 4, 2019 | Criminal Defense, First Amendment, Police and Prosecutorial Misconduct |

Cursing at a cop is protected speech.

The United States Supreme Court and the South Carolina Supreme Court have made that clear for decades in a line of cases that arguably begins in 1942 when the US Supreme Court outlined the “fighting words exception” to First Amendment protections in Chaplinsky v. New Hampshire.

Yet, police in Myrtle Beach still arrest people who curse at them, argue with them, or are just disrespectful to them. The charges may be public disorderly conduct, breach of peace, or interference with a police officer, but we call it “contempt of cop.”

Below, we will take a look at a recent case from the Eighth Circuit Court of Appeals that reaffirms our First Amendment right to curse at a cop and our right to file suit under 18 USC Section 1983 when a police officer arrests us and charges us with a crime for speaking our mind.

If you have been arrested and charged with breach of peace, interfering with a police officer, or disorderly conduct in Myrtle Beach because you were cursing at a cop or other protected speech, call the Myrtle Beach criminal defense lawyers at Coastal Law.

We will work to investigate your case, get your charges dismissed, win your case at trial, and advise you as to whether you have a civil lawsuit against the officer or municipality.

Thurairajah v. City of Fort Smith

In Thurairajah v. City of Fort Smith, decided June 3, 2019, the Eighth Circuit Court of Appeals affirmed the district court’s denial of qualified immunity to a police officer who arrested Thurairajah after Thurairajah yelled f*** you! at him from a passing car.

The officer, who had stopped another vehicle on the side of the road, hopped into his patrol car, pulled over Thurairajah’s vehicle, and arrested him for disorderly conduct.

Despite numerous state appellate opinions making it clear that a single shouted expletive is insufficient for a disorderly conduct charge, the officer argued in court that he was entitled to qualified immunity because he was confused as to whether there was probable cause for the arrest.

You see, he didn’t arrest Thurairajah because he was mad at Thurairajah, because his feelings were hurt that Thurairajah cursed at him, or because he just can’t stand it when people don’t respect his authority. He arrested Thurairajah because the shouted expletive constituted “unreasonable or excessive noise” under the disorderly conduct statute…

The Eighth Circuit disagreed, taking the opportunity to explain when qualified immunity applies and why the offended officer was not entitled to it as well as the elements of a Fourth Amendment and a First Amendment claim for damages under 18 USC Section 1983.

Can I Sue if I Was Arrested for Cursing at a Cop?

Maybe.

Cursing at a cop is protected speech under the First Amendment unless your speech rises to the level of “fighting words.” “Fighting words” are those words that would tend to immediately provoke a violent response – for example, using a racial epithet or talking about someone’s mother (seriously, this is an example from an appellate opinion. Don’t talk about people’s mothers).

If you are committing a crime as you are cursing at a cop, obviously you can be arrested and charged with that crime.

If there is any other reason to arrest you, you will most likely not have a lawsuit for wrongful arrest. On the other hand, if the only reason the officer arrested you was for expressing your opinion, even if that opinion consisted of cursing at a cop, you may have a civil rights lawsuit against the officer or their department.

Have a look at:

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942);

Gooding v. Wilson, 405 U.S. 518 (1972);

Norwell v. Cincinnati, 414 U.S. 14 (1973);

Lewis v. New Orleans, 415 U.S. 130 (1974);

Houston v. Hill, 482 U.S. 451 (1987);

Springdale v. Butler, 299 S.C. 276 (1989);

State v. Perkins, 306 S.C. 353 (1991);

State v. Pittman, 342 S.C. 545 (Ct.App.2000);

State v. Pittman, 342 S.C. 545 (Ct.App.2000);

In Re Jeremiah W., 361 S.C. 620 (2004); and

State v. Bailey, 368 S.C. 39 (Ct.App.2006).

Qualified Immunity

Qualified immunity will prevent you from suing a police officer unless:

  1. The officer violated a constitutional right; and
  2. The constitutional right was clearly established at the time of the violation.

The courts tend to give officers considerable leeway when deciding qualified immunity, and rightly so – it does not make sense to allow a police officer to be subject to a lawsuit when he or she did not know they were violating your rights and it was not reasonable for them to have known.

Of course, as you can see from the long yet incomplete list of cases above, the First Amendment protection for cursing at a cop is clearly established and has been for quite some time…

Fourth Amendment Claims

An 18 USC Section 1983 claim for violation of your Fourth Amendment rights can be based on an unjustified search, seizure, or assault by a police officer.

When you are arrested, the officer is physically assaulting you by placing handcuffs on your wrists and forcing you into his car. You may have been subjected to other forms of assault as well.

When you are arrested for cursing at a cop, you are unconstitutionally “seized” and your freedom is taken from you without justification. You are also searched, and, in most cases, your property is taken from you for the time that you are incarcerated.

These are some examples of police action that can be the basis of your Fourth Amendment claim for wrongful arrest – there may be others based on the circumstances of your arrest and detention.

First Amendment Claims

When you are arrested for cursing at a cop, you are being punished in retaliation for exercising a constitutional right – protected speech. This may be a separate claim in your civil rights lawsuit when:

  1. You are engaged in a protected activity (speech);
  2. The officer takes adverse action against you “that would chill a person of ordinary firmness from continuing in the activity;”
  3. The adverse action was motivated by your exercise of the protected activity (speech); and
  4. There was no probable cause for the arrest.

Does everyone who is charged with disorderly conduct have a civil lawsuit against the police? Of course not.

But, if you are arrested solely for speaking your mind, even if you are cursing at a cop, and if there was no other illegal conduct that you could have been charged with, you may have a civil rights lawsuit after your criminal case is dismissed.

Disorderly Conduct Lawyers in Myrtle Beach, SC 

If you are charged with disorderly conduct or breach of peace for cursing at a cop, your Myrtle Beach criminal defense lawyer at Coastal Law will work hard to get your case dismissed or to get an acquittal at trial while preserving any evidence that you may need for a civil rights lawsuit against the officer or police department.

Call Coastal Law now at (843) 488-5000 or contact us online to set up a free consultation about your case.

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