Note: Clearly this is something someone shouldn’t do, regardless of it’s legality. Officers have to put up with enough bull crap already, you should always be polite to everyone, especially law enforcement.
I recently defended a case where a man allegedly yelled “FUCK YOU” from a moving vehicle during a different traffic stop being conducted by a law enforcement officer. There was a woman and two small children inside of the stopped vehicle that heard this as well, or so it was alleged.
Although my client was found not guilty of Disorderly Conduct, he still got thrown against his hood, had his car towed then impounded, and had to bond out of jail after sitting there for 8 hours.
That said, it is totally legal to tell a police officer “fuck you” or to flip a police officer the bird, even in front of children. Now, you may be found guilty and have to appeal, but eventually you should get a not guilty, and if you sue the police officer afterward you might get a nice pay day for your trouble. The judge did note that had the prosecutor asked, she would have found my client guilty of “Obstructing Governmental Operations” (the traffic stop), but I am confidant that I could eventually beat that charge on appeal.
This topic is far too complicated to reduce to a blog, so I’ll just submit the arguments I made to the court:
The question presented by the case at bar is not whether “f—” is a desirable or attractive word, or whether it is good judgment to tell a police officer “f— you.” Rather, the question is one of constitutionality and whether the State can criminalize the speech in question by application of the statute at issue. Although Mr.——– could have selected a more desirable choice in prose such as “I respectfully dissent” or “I am disappointed with your actions, sir, and ask you to cease and desist,” the use of the word “f—” ultimately clearly and unabashedly conveyed these sentiments, and does not amount to criminal conduct in this particular context. The statement alleged against Mr.——— is protected by the First and Fourteenth amendments to the United States Constitution. The United States and Arkansas Constitutions both provide that no law abridging or impairing freedom of speech shall be enacted. U.S. Const. Amend. I, applies to the states through U.S. Const. Amend. XIV, and Article 2 § 6 of the Arkansas Constitution.
“f—” is an entirely legal word that may be uttered in public places so long as the manner in which it is uttered will not cause a violent reaction. Cohen v. California, 403 U.S. 15 (1971) (“f— the Draft” jacket worn in a courthouse was protected by the first amendment). In overturning a disorderly conduct conviction, the Cohen Court went on to state:
Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual. Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures–and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.” Baumgartner v. United States, 322 U.S. 665, 673-674 (1944). Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results. Cohen at 25-26.
The state has the power to protect its citizenry from actual harm, and thus has the power to outlaw one yelling “Fire!” in a crowded theater. See Schenck v. United States, 249 U.S. 47 (1919). However, yelling “f—!” in a crowded theater does not create a clear and present danger to anyone and thus cannot be outlawed. Although they are both four letter words that start with “F,” the distinction is constitutionally significant.
“f—” is certainly a controversial word that may be appropriate in certain venues and locales (Webby D’s, speed eating contests, criminal defense attorney offices) and may be inappropriate in others (weddings, Chuck-E-Cheese pizza parlors, prosecuting attorney offices). Some people may believe it is always inappropriate, but in all but a very few circumstances, the First Amendment to the United States Constitution prohibits our government from making that determination. This case falls outside those very limited circumstances and as such, no conviction can result from
Mr.——-’s alleged statement.
The Arkansas courts have limited A.C.A. § 5-71-207 in similar circumstances to fighting words. See Lucas v. State, 494 S.W.2d 705 (Ark. 1973); Hammond v. State, 498 S.W. 2d 652 (Ark. 1973); Bosquet v. State, 548 S.W. 2d 123 (Ark. 1977); Johnson v. State, 37 S.W.3d 191 (Ark. 2001); Shoemaker v. State, 38 S.W.3d 350 (Ark. 2001); Watkins v. State, 377 S.W.3d 286 (Ark. App. 2010). In each of those cases, it was more than just language that resulted in a Disorderly Conduct charge, and the abusive language used in each case was repetitive and unending, not just two words. Whether “f— you” directed at a state trooper constitutes fighting words in Arkansas has already been determined by Nichols v. Chacon, 110 F. Supp. 2d 1099 (W.D. Ark. 2000), the decision from which I have lightly edited for relevancy and include below. The two most important and relevant parts of the opinion are that extending your middle finger was mutually understood to mean “f— you” and “the impact of the gesture was as effective as spoken words in getting Nichols’ message across.” :
“In general, expressive conduct is protected from government regulation under the First and Fourteenth Amendments. As has oft been said, “even crudity of expression may be constitutionally protected.” State v. Drake, 325 A.2d 52, 54 (Me.1974) (citing Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (1973)).
Gesturing in the manner described in this case has a commonly understood meaning and connotation. The impact of the gesture was as effective as spoken words in getting Nichols’ message across. Without a doubt, the gesture was communicative conduct and is analyzed just as if *1104 Nichols had spoken the words “f___ you.” Burnham v. Ianni, 119 F.3d 668, 674 (8th Cir.1997) ( “Nonverbal conduct constitutes speech if it is intended to convey a particularized message and the likelihood is great that the message will be understood by those who view it, regardless of whether it is actually understood in a particular instance in such a way.”) (citation omitted).
“Speech is often provocative and challenging … [But it] is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Terminiello v. City of Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949). Pure speech is protected unless the words, by their utterance alone, inflict injury or tend to evoke immediate violence or other breach of the peace. Gooding v. Wilson, 405 U.S. 518, 525, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). Such “fighting words” are not protected.City of Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 2511 n. 12, 96 L.Ed.2d 398 (1987).
The Supreme Court has held on numerous occasions that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Hill, 107 S.Ct. at 2509. It has said that “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.” Hill, 107 S.Ct. at 2510.
In Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974), the Supreme Court found unconstitutional a municipal ordinance that made it a crime “for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty.” Lewis had been convicted of violating this ordinance because she yelled obscenities and threats at an officer, after he stopped the vehicle in which she was a passenger, while he was asking her husband for his driver’s license.
In his concurring opinion, Justice Powell suggested that “even the ‘fighting words’ exception recognized in Chaplinsky … might require a narrower application in cases involving words addressed to a police officer, because ‘a properly trained officer may reasonably be expected to exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’ ” Hill, 107 S.Ct. at 2510 (quoting Lewis, 94 S.Ct. at 973).
In Cohen v. California, 403 U.S. 15, 26, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), the Supreme Court held that “absent a more particularized and compelling reason for its actions, [a] State may not, consistently with the First and Fourteenth Amendments, make the simple public display … of [a] four-letter expletive a criminal offense.” In that case, an individual, while in a public building, had the words “f__k you” displayed on his clothing.
The Court noted that:
while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.
Cohen, 403 U.S. at 25, 91 S.Ct. 1780.
Statutes proscribing the use of abusive or obscene language or the making of obscene gestures in public places have repeatedly been struck down as unconstitutionally overbroad because they prohibit a substantial amount of constitutionally protected expression. For instance Hill, supra, the Supreme Court invalidated a county ordinance which made verbally challenging an officer in the line of duty unlawful. See e.g., People v. Ananias, 152 Misc.2d 660, 578 N.Y.S.2d 371 (1991) (disorderly conduct statute unconstitutionally overbroad); State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980) (disorderly conduct statute unconstitutional).
Similarly, arrests have been held to be without probable cause when based on obscene gestures and/or verbal challenges to the police. For instance, in Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir.1990), Ralph Duran directed a series of expletives and an “obscene” hand gesture at a police officer, Gilbert Aguilar. Duran, 904 F.2d at 1374. Earlier in the evening the two had come into contact when Aguilar responded to a bartender’s complaint about an unruly customer, Duran. Id. Aguilar and Duran exchanged “heated words” and Aguilar then escorted Duran out. Id.
Duran left in an automobile driven by his wife, Alice. Id. “Soon thereafter, while out on patrol, Aguilar observed a car with a passenger who was directing an obscene gesture toward him through an open window.” Id. Because of the darkly-tinted windows, Aguilar did not know the passenger’s identity. Id.
After observing the gesture, Aguilar started following the car. As Aguilar followed the car, Duran began “yelling profanities in Spanish and continued to make obscene gestures.” Id. Aguilar made a traffic stop to find out why Duran had yelled profanities and made an “obscene” gesture toward him. Id. at 1374–75.
The Durans filed a section 1983 suit seeking damages for the allegedly unlawful stop and arrest. They then filed a motion for partial summary judgment on the issue of liability. Aguilar filed a motion for summary judgment on qualified immunity grounds. The district court ruled in favor of the Durans.
On appeal, the Ninth Circuit first noted that since the relevant facts were undisputed “resolution of the qualified immunity question will also decide the question of Aguilar’s liability.” Id. at 1375.
It noted that there are “well-defined limits on what police officers may do in discharging their duties, and police may be held liable for acting outside those limits.” Id. at 1376. Fundamentally, the Ninth Circuit noted, the police may not “interfere with the freedom of private persons unless it be for specific, legitimate reasons.” Id. (citation omitted).
It found “[m]issing from the record … any legitimate, articulate reason for Aguilar to have detained Duran.” It noted there was no evidence of danger to the public, no warrant, and no evidence Duran was in possession of a controlled substance or had been or was about to engage in criminal activity. Id. at 1377.
The Ninth Circuit then turned to a discussion of Aguilar’s attempt to rely on Duran’s use of profanity and his displaying an “obscene” gesture as grounds for the stop and detention. It said:
Defendant relies heavily on the fact that Duran was making obscene gestures toward him and yelling profanities in Spanish while traveling along a rural Arizona highway. We cannot, of course, condone Duran’s conduct; it was boorish, crass and, initially at least, unjustified. Our hard-working law enforcement officers surely deserve better treatment from members of the public. But disgraceful as Duran’s behavior may have been, it was not illegal; criticism of the police is not a crime. Houston v. Hill, 482 U.S. 451, 461–63, 107 S.Ct. 2502, 2509–10, 96 L.Ed.2d 398 (1987).Id….In a footnote, the Ninth Circuit noted that:
The First Amendment does not prevent enforcement of disorderly conduct statutes so long as they are not vague or applied to curb protected speech. See Hill, 482 U.S. at 465–67, 107 S.Ct. at 2511–13; Colten v. Kentucky, 407 U.S. 104, 111, 92 S.Ct. 1953, 1957–58, 32 L.Ed.2d 584 (1972). Here, because the only person Duran could have possibly disturbed was Aguilar, his speech was protected and the statute could not apply. See Hill, 482 U.S. at 461–63, 107 S.Ct. at 2509–10.
The Ninth Circuit then continued its analysis by stating that:
Duran’s conduct is not totally irrelevant, however, as it suggests a possible motive for his detention, one upon which law enforcement officers may not legitimately rely. The Durans contend, and the district court held, that Aguilar stopped their car at least partly in retaliation for the insult he received from Duran. If true, this would constitute a serious First Amendment violation. “[T]he First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” Hill, 482 U.S. at 461, 107 S.Ct. at 2509. The freedom of individuals to oppose or challenge police action verbally without thereby risking arrest is one important characteristic by which we distinguish ourselves from a police state. Id. at 462–63, 107 S.Ct. at 2510. Thus, while police, no less than anyone else, may resent having obscene words and gestures directed at them, they may not exercise the awesome power at their disposal to punish individuals for conduct that is not merely lawful, but protected by the First Amendment.
Inarticulate and crude as Duran’s conduct may have been, it represented an expression of disapproval toward a police officer with whom he had just had a run-in. As such, it fell squarely within the protective umbrella of the First Amendment and any action to punish or deter such speech—such as stopping or hassling the speaker—is categorically prohibited by the Constitution. Aguilar admits that he stopped Duran because he made an obscene gesture and yelled profanities toward him. Aguilar Depo. at 85–86. Because Aguilar might have detained Duran in retaliation for engaging in this protected speech and conduct, summary judgment in favor of Aguilar would have been inappropriate. At the same time, because Aguilar claims that he had no retaliatory motive—that he honestly believed Duran’s actions indicated that criminal activity might be afoot—the district court’s grant of summary judgment in favor of Duran on this issue was also error. There remains a material issue of fact, therefore, whether Aguilar intended to hassle Duran as punishment for exercising his First Amendment rights. To the extent the trier of fact determines that officer Aguilar stopped Duran in retaliation for Duran’s method of expressing his opinion, this would constitute a separate constitutional violation that could form the basis of liability under section 1983.
Id. at 1377–78.
With respect to whether the rights in question were so clearly established “that officer Aguilar should have known he was acting illegally when he initiated the traffic stop,” the Ninth Circuit held they were. Id. at 1378. It stated:
If there is one irreducible minimum in our Fourth Amendment jurisprudence, *1107 it is that a police officer may not detain an individual simply on the basis of suspicion in the air. No matter how peculiar, abrasive, unruly or distasteful a person’s conduct may be, it cannot justify a police stop unless it suggests that some specific crime has been, or is about to be, committed, or that there is an imminent danger to persons or property. Were the law any different—were police free to detain and question people based only on their hunch that something may be amiss—we would hardly have a need for the hundreds of founded suspicion cases the federal courts decide every year, for we would be living in a police state where law enforcement officers, not the courts, would determine who gets stopped and when.
No less well established is the principle that government officials in general, and police officers in particular, may not exercise their authority for personal motives, particularly in response to real or perceived slights to their dignity. Surely anyone who takes an oath of office knows—or should know—that much. See Hill, 482 U.S. at 462, 107 S.Ctf. at 2510. Whether or not officer Aguilar was aware of the fine points of First Amendment law, to the extent he is found to have detained Duran as punishment for the latter’s insults, we hold that he ought to have known that he was exercising his authority in violation of well-established constitutional rights.
Id. at 1378
In Brockway v. Shepherd, 942 F.Supp. 1012 (M.D.Pa.1996), the court held that the display of the extended middle finger in a show of disrespect was not an obscene gesture within the meaning of relevant Supreme Court opinions and does not amount to fighting words. The court ruled the display was therefore protected by the First Amendment.
However, the court went on to hold the officer entitled to qualified immunity because the passenger’s right not to be arrested for making the gesture was not clearly established at the time of the arrest, January 14, 1996. In so holding, the court issued the following caution:
It is important, however, at some point to establish firmly the right in question. We therefore emphasize: The use of profane or vulgar language is protected by the First Amendment unless some exception to the general protection applies. That is, standing alone, profane or vulgar language is not itself obscene and does not amount to fighting words. The same principle applies to the use of a gesture which represents profane or vulgar language, and the communication must be looked at in its entirety and in context to determine whether an exception to the general protection of speech applies.
Id. at 1017.
In Mackinney, the Ninth Circuit held that the police officer should have known that verbal protests could not support an arrest under a California statute and that it was “unreasonable [for the officer] to think otherwise.” Mackinney v. Nielsen, 69 F.3d 1002, 1007 (9th Cir.1995). As the Ninth Circuit has remarked, “[t]hese cases establish a First Amendment right to challenge the police. Even when crass and inarticulate, verbal challenges to the police are protected.” Mackinney, 69 F.3d at 1007. In short, “ ‘criticism of the police is not a crime.’ ” Mackinney, 69 F.3d at 1007 (quoting Duran, 904 F.2d at 1377).
In concluding, the Ninth Circuit noted that:
Police officers have a difficult job, and they deserve the respect of their community. But they in turn must respect the right of individuals in that community to question their government and the role of the police. A reasonable officer should have known that Mackinney simply was exercising that right.
Mackinney, 69 F.3d at 1007.
In Sandul v. Larion, 119 F.3d 1250 (6th Cir.1997), the Sixth Circuit dealt with a similar incident stemming from an August *1108 3, 1990, arrest. There Officer Larion was talking with a group of abortion protestors when the passenger of a truck, John Sandul, “leaned out of the vehicle as it passed by the abortion protestors and shouted ‘f__k you,’ and extended his middle finger to the group.” Id. at 1252. The truck in which Sandul was a passenger was separated from the protestors by a lane of traffic, a grassy median strip, and a sidewalk. Id.
“Believing that Sandul’s conduct violated the city of Livonia’s disorderly conduct ordinance, Larion began pursuing the truck until it stopped in front of Sandul’s house.” Id. After an exchange at Sandul’s house that required backup assistance, Sandul was arrested and charged with disorderly conduct and felonious assault. Id. Sandul was acquitted of the disorderly conduct charge and a mistrial was declared on the assault charge. Id. at 1253.
Sandul filed a § 1983 action. He did not challenge the constitutionality of the Livonia ordinance but rather argued that “Larion violated his constitutional rights by falsely arresting Sandul while he was exercising his right to free speech and that because Officer Larion should have known that he was violating Sandul’s First Amendment rights he is not entitled to qualified immunity.” Id. at 1254.
The Sixth Circuit first determined that Sandul’s actions were protected speech. Id. The court noted that under Cohen, “the use of the ‘f-word’ in and of itself is not criminal conduct.” Id. at 1255. It concluded:
Sandul’s words and actions do not rise to the level of fighting words. The actions were not likely to inflict injury or to incite an immediate breach of the peace. Sandul’s vehicle was traveling at a high rate of speed on the opposite side of the street, a considerable distance away from the protestors to whom the language was directed. Sandul was in a moving vehicle; the entire incident was over in a matter of seconds.
Id. at 1255. It appeared that no one other than Larion even acknowledged Sandul’s behavior, given these facts and the absence of face-to-face contact, the Sixth Circuit stated “it is inconceivable that Sandul’s fleeting actions and words would provoke the type of lawless action alluded to in Chaplinsky. Sandul’s action was not fighting words and therefore was speech protected by the First Amendment.” Id.
The court then concluded that “[i]n 1990 when Sandul was arrested for his use of the ‘f-word,’ it was clearly establish that speech is entitled to First Amendment protection with the exception of fighting words.” Id. It noted that “Chaplinsky had been decided over fifty years earlier and the Cohen decision, which prohibited criminal prosecution for the use of the same expletive, had been decided in 1971.” Given these facts, the Sixth Circuit stated:
It was clearly established at the time of Sandul’s arrest that his actions were within the contours of his First Amendment rights.
Applying the objective reasonableness standard, a reasonable officer should have known that the words and gestures employed by Sandul amounted to protected speech. Well-established Supreme Court precedents demonstrate Sandul’s constitutional right to free speech, with the exception of fighting words. See, e.g., Cohen, supra (holding that absent a compelling and particularized reason, the First and Fourteenth Amendments preclude States from prohibiting the public display of a four-letter expletive); andChaplinsky, supra (holding that the only types of speech denied First Amendment protection are words which by their very utterance inflict injury or incite an immediate breach of the peace). These cases should leave little doubt in the mind of a reasonable officer that the mere words and gesture “f__k you” are constitutionally protected speech. “ ‘[S]tate employees may not rely on their ignorance of even the most esoteric aspects of the law to deny individuals *1109 their [constitutional] rights.’ ” Long,929 F.2d at 1115 (quoting Wentz v. Klecker, 721 F.2d 244 (8th Cir.1983)). As a reasonable officer, Larion should have known that the words and gestures used by Sandul were constitutionally protected, and that under the First Amendment, the disorderly conduct ordinance could only apply to “fighting words.”
Id. at 1255–56.
The Sixth Circuit next rejected, Larion’s argument that “he had probable cause to arrest Sandul because he reasonably believed that Sandul had violated the Livonia disorderly conduct statute.” Id. at 1256. While an officer “is permitted to make an arrest if there is probable cause to believe that the arrestee has committed or is committing an offense,” the court concluded “Larion did not have probable cause to believe that Sandul had violated any of the three Livonia ordinances at issue.” Id. As Sandul’s “actions did not constitute fighting words and thus amounted to protected speech,” the court conclude there was no probable cause for the arrest since “[s]uch protected speech cannot serve as the basis for a violation of any of the Livonia ordinances at issue.” Id.
Finally, the Sixth Circuit rejected Larion’s argument that “Sandul has no cognizable First Amendment claim because he did not challenge the constitutionality of the statute under which he was arrested.” Id. The court held:
Sandul’s failure to challenge the relevant Livonia ordinances does not obliterate his inalienable First Amendment rights. Sandul’s First Amendment rights are guaranteed, absolute, and protected unless his speech falls within an exception; such is not the case here. While the Livonia ordinances are presumptively valid as they have not been challenged, Sandul’s § 1983 claims are unaffected by his failure to challenge the constitutionality of the ordinances.
Id. at 1256.
The case of Cook v. Bd. of County Commissioners of the County of Wyandotte, 966 F.Supp. 1049 (D.Kan.1997) also involved a § 1983 claim by an individual who was arrested for disorderly conduct after “flipping the bird” to a highway patrol officer. The court rejected the argument that the gesture was the equivalent of “fighting words.”
In rejecting the officer’s claim of qualified immunity, the court stressed that the real issue was “not whether plaintiff had a constitutional right to ‘flip off’ Officer Drake, but whether Officer Drake reasonably could have believed that plaintiff was engaged in disorderly conduct … when he ‘flipped [him] the bird.’ ” Id. at 1052. It held that since 1980, the Kansas courts had narrowly limited the disorderly conduct statute to “fighting words,” or words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. On the record before it, the court held it could not:
infer that a reasonable police officer would necessarily believe that plaintiff was engaged in disorderly conduct or that—in light of clearly established law and the information known to Officer Drake—a reasonable officer would have had probable cause to arrest plaintiff and charge him with disorderly conduct in violation of Kansas Law.
In Buffkins v. City of Omaha, 922 F.2d 465 (8th Cir.1990), the Eighth Circuit concluded that an individual’s reference to the arresting officers as “asshole” was not within the category of “fighting words” excluded from protection of the First Amendment. It agreed that the district court should have found as “a matter of law that the arresting officers could not have reasonably concluded that they had probable cause to arrest her for using a ‘fighting word.’ ” Id. at 472.
It stated there was “no evidence Buffkins’ speech was an incitement to immediate lawless action.” Id. Moreover, it noted that no one outside the interview room *1110 heard the comment. Id. Additionally, it stated:
Buffkins’ use of the word “asshole” could not reasonably have prompted a violent response from the arresting officers.In Houston v. Hill, 482 U.S. 451, 462, 107 S.Ct. 2502, 2510, 96 L.Ed.2d 398 (1987), the Supreme Court recognized that the “fighting words” doctrine may be limited in the case of communications addressed to properly trained police officers because police officers are expected to exercise greater restraint in their response than the average citizen.
During his deposition, although he did not know of the Buffkins case by name, Chacon acknowledged having heard about the case. Chacon was not asked whether he understood the holding of that case.
While Chacon asserts there is no relevant authority in the governing jurisdictions, he fails to explain how the cases discussed above, including the Supreme Court decisions in Cohen and Hill, can be distinguished. He also fails to note that the Arkansas Supreme Court has itself limited application of the disorderly conduct statute to “fighting words.”
Although the Arkansas statute at issue here, Ark.Code Ann. § 5–71–207(a)(3) was found to be constitutional by the Arkansas Supreme Court, the court’s ruling was premised on a limiting construction of the statute. Bailey v. State, 334 Ark. 43, 972 S.W.2d 239 (1998). The court read the language of subsection (a)(3) as incorporating the “fighting words” rule of Chaplinsky. See also Dawn C. Egan, “Fighting Words” Doctrine: Are Police Officers Held to a Higher Standard, or per Bailey v. State, Do We Expect No More from Our Law Enforcement Officers than We Do from the Average Arkansan?, 52 Ark.L.Rev. 591 (1999).
910 While we agree the gesture utilized by Nichols was crude, insensitive, offensive, and disturbing to Chacon’s sensibilities, it was not obscene under the relevant Supreme Court precedent, did not constitute “fighting words,” and was protected as “free speech” under the First Amendment to the United States Constitution. We also believe that this right was clearly established on August 6th of 1998 when Chacon arrested Nichols. Accordingly, we hold as a matter of law that Chacon is not entitled to qualified immunity and that his arrest of Nichols violated Nichols’ First and Fourth Amendment rights.
Here is some case law that the court asked me to provide on whether or not one may legally say “Fuck You” in front of children or third parties:
- BRIEF IN SUPPORT OF MOTION TO DISMISS
The question presented to this court is whether someone is legally allowed to say “Fuck You” in front of children or 3rd parties in general, as long as that language is not directed at them. The answer is a resounding yes. The First Amendment clearly allows such disgusting acts. Namely, because the Disorderly Conduct statute has been limited to fighting words. If the words are not uttered in such a way that would cause a reasonable person to be incited to violence, then the court must find (name redacted) not guilty. The defense contends that of all the 61 cases that cite A.C.A. §5-71-207, the case at hand is by far the most mild. In each case, simply saying or yelling two words is not enough, there is always more (15-20 minutes of non stop swearing, jumping up and down, clenching fists, being told repeatedly to stop, trespassing, flailing, using true threats, etc.)
The defense read through the 61 cases in Arkansas and the 8th Circuit that this statute, and found the following to be the most relevant:
1. “Disorderly conduct statute that covered speech and gestures, spoken in a public place, that were “abusive or obscene” and “likely to provoke a violent or disorderly response” from the listener, proscribed only “fighting words,” and, as such, was not facially overbroad in violation of First Amendment. U.S.C.A. Const.Amend. 1; A.C.A. § 5-71-207.” Bailey v. State, 1998, 972 S.W.2d 239, 334 Ark.
2. “Here, the evidence—viewed most favorably to the State—showed that appellant is fifteen years old; that he unexpectedly came upon the scene where his mother was being arrested and handcuffed; that he had a “look of fear or frustration” but no clenched hands; that he yelled in a very loud voice, “Get your fucking hands off my mother” and that the situation was “fucked up”; that the resource officer put his hands on appellant, who was jumping up and down, and told appellant to lower his voice because he did not need to get involved; that the resource officer could not say appellant was trying to actively get past him; that the incident occurred on a public street, close to the school entrance, in a residential *8 area, with children around, and a utility crew nearby, all causing **884 backed-up traffic; and that the incident lasted about twenty seconds. The evidence establishes the use of foul language, but no demonstration of violent demeanor or acts of aggression.
Under the facts of this case, we have concluded that the evidence did not establish that appellant engaged in purposeful conduct. That is, the evidence does not support the conclusion that it was his conscious object to engage in disorderly conduct as defined in section 5–71–207. We have wrestled more with whether the State established that appellant acted “recklessly,” again concluding that, under the facts presented, the evidence does not support that state of mind for appellant either.
A “person acts recklessly with respect to attendant circumstances or a result of his or her conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur ” (emphasis added), i.e., that disorderly conduct will occur. Ark.Code Ann. § 5–2–202. And, “[t]he risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation [.]” (Emphasis added.) Id.Twenty seconds of the described conduct—by a fifteen-year-old boy whose mother was being unexpectedly handcuffed in front of him—does not constitute a “gross deviation from the standard of care that a reasonable person would observe” in his situation.
M.J. v. State, 2011 Ark. App. 171, 7-8, 381 S.W.3d 880, 883-84 (2011)
3. “At approximately the same time as Chief Locke exited his police cruiser to approach the stopped vehicle, one of Steibel’s patrons sought to leave the parking lot but was blocked in by the vehicles. Steibel exited his business and requested in a “nice” manner that Chief Locke move his vehicle so that the patron could exit. Chief Locke summarily rejected Steibel’s request, stating that he was engaged in official police business. After repeated requests for Chief Locke to move his vehicle, Steibel approached the traffic stop where he can be seen on the video captured from the police cruiser’s dashboard camera. Standing at the rear passenger side of the vehicle, and separated from Chief Locke by the width and length of the stopped vehicle,2 Steibel pointed at Chief Locke, pointed down the road, said “move the f* * *ing car,” and pointed at Chief Locke again.”
Copeland v. Locke, 613 F.3d 875, 878 (8th Cir. 2010) (Police officer found not to have probable cause to arrest under Missouri statute, quoted by Roe v. Graham, an Arkansas 8th Circuit case):
4. The Eighth Circuit has recently been clear that merely raising one’s voice, pointing, and cursing a law-enforcement officer—if done at some distance and while approaching in a “non-aggressive manner”—are protected expressive acts. Copeland v. Locke, 613 F.3d 875, 879–80 (8th Cir.2010). “It is … fundamental that a lawful arrest may not ensue where the arrestee is merely exercising [her] First Amendment rights.” Copeland, 613 F.3d at 880 (internal quotation omitted).
Roe v. Graham, No. 2:09-CV-98-DPM, 2010 WL 4916328, at *5 (E.D. Ark. Nov. 23, 2010) (Store patron and traffic stop defendant were present to curse words in Copeland case, referenced our disorderly conduct statute)
5. “After the EKG and lab work were completed and reviewed, it was determined that appellant was not having a heart attack, and appellant was discharged. He reacted angrily demanding nitroglycerin tablets for his heart and phenergan for nausea, despite the fact that he had not reported nausea, but the doctor refused to give him the drugs. Appellant was swearing and threatening, and he demanded that the hospital give him a ride home. In the presence of patients and staff, appellant continued “hollering and yelling” and using profanity for about 15 minutes. These actions caused Nurse Barlow to be afraid of appellant. She called the police, and when they arrived, appellant was belligerent to them, continuing to rant and using profanity. He was removed by the police. Subsequent to that removal, appellant engaged in the same behavior-presenting for chest pain then screaming and yelling angrily when no problem required medication. Nurse Barlow testified that she is afraid of him every time he behaves that way….Nurse Barlow’s testimony was that she was fearful of appellant when he engaged in the belligerent behavior. It is the instilling of fear that creates the danger that a violent response will ensue. See McLaughlin v. United States, 476 U.S. 16 (1986); Holloway v. State, 18 Ark.App. 136, 74 S.W.2d 484 (1986) (overruled on other grounds)(applying the McLaughlin rationale to an aggravated assault charge); Swaim v. State, 78 Ark.App. 176, 79 S.W.3d 853 (2002).
Dubois v. State, No. CACR07-944, 2008 WL 2192096, at *3 (Ark. Ct. App. May 28, 2008)
Not only do you have to use fighting words, they have to be used in a manner likely to provoke a violent or disorderly response, yelling two words out of a window and running away is not likely to provoke that response, as compared to this case:
6. “In any event, Mr. Bailey’s argument must inevitably fail because the disorderly conduct statute was properly applied to his conduct. While he refers us to his use of the words, “motherfucker,” “asshole,” and “nigger” during his taped interview at the police station, it was Mr. Bailey’s conduct at his residence that prompted his arrest for disorderly conduct. As Officer Geater testified, Mr. Bailey began to curse him, calling him “MF” *54 or “SB” when he brought Ms. Brock out of the residence. At one point, according to Trooper Newton, Mr. Bailey stated, “Fuck you, nigger, and fuck you, too.” When Officer Randle arrived at the scene Mr. Bailey
stood up and grabbed me by the upper part of my arm, the biceps. Mr. Bailey said some profane things to me and told me to leave his friend alone. I told him to sit down and be quiet. He did sit down and be quiet.” (Emphasis added.) Bailey v. State, 334 Ark. 43, 53-54, 972 S.W.2d 239, 245 (1998) (Not only did Mr. Bailey’s direct various fighting words to the officers, when considering his surrounding conduct, such as standing up and grabbing Officer Randle’s arm, we conclude that he used these words “in a manner likely to provoke a violent or disorderly response” under § 5–71–207(a)(3). Moreover, his act of standing up and grabbing Officer Randle’s arm in and of itself supported a conviction under subsection (a)(1), as this conduct constituted “threatening behavior.”)
7. “It is now clear that the words must do more than offend, cause indignation or anger the addressee to lose the protection of the First Amendment. See Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)….Thus, even insulting speech is protected by the First Amendment unless it is likely to arouse anger to the extent likely to cause violent physical retaliation.” Hammond v. Adkisson, 536 F.2d 237, 239 (8th Cir. 1976) Where 19 year old defendant said:
“You m. f. son-of-a-bitches think you all can come out and do anything that you want to do.
At that point, the officer told her that she was under arrest. Ms. Hammond then said, “You m. f. pigs is not gonna carry me anywhere,” and she ran into the house. The officer followed. A scuffle took place and petitioner was handcuffed and taken to the police station.” In front of a 13 year old. Found not guilty after federal appeal, this case was citing the old Disordrely Conduct statute: Ark.Stat.Ann. s 41-1412,1 which prohibits: “use of any profane, violent, vulgar, abusive or insulting language . . . calculated to arouse to anger the person . . . addressed, or to cause a breach of the peace or an assault.”
8. “ Watkins came out of the house after they pulled up; approached a city utility employee first; and then came over to where his crew was located and began yelling and cussing at his employees and anyone else around, saying, “you f* * *n’ tree trimmers you’re butchering my trees” in a loud confrontational manner, yelling right in his face. Crafton described Watkins as irate and “acting hysterical”; that he felt like she was threatening him; that he was intimidated by her actions; and that he was concerned for the well-being of his employees. He said that Watkins screamed at his crew, calling them “bastards” and yelling, “f* * *n’ tree trimmers, quit doin’ that,” and that she charged at him *6 as well as some of his workers in a speedy manner. He said that Watkins continued to enter the coned safety zone on several occasions, he asked the police to escort her out of the area, and he did not try to calm Watkins down because there was no rationalizing with her, that she was “going ballistic.””
Watkins v. State, 2010 Ark. App. 85, 9-10, 377 S.W.3d 286, 291 (2010) (Every case citing disorderly conduct seems to be more than just words, in this case Watkins kept acting this way even after arrest.)
Other states have ruled that saying “fuck you” is Constitutionally protected, even in front of children, and that if the words don’t constitute a true threat then the court must also take into consideration the actions of the Defendant.
1. State v. James M., 111 N.M. 473, where a juvenile repeatedly yelled fuck you and waived his arm while engaged in an argument with a civilian and a small crowd formed. Appellate court determined that they must have taken into consideration the actions and not just the speech in order to find disorderly conduct, because telling the man “fuck you” would not have been enough.
2. R.I.T. v. State, 675 So.2d 97. Where saying fuck you to police officer in front of non police officers did not constitute fighting words that would support conviction for disorderly conduct, this state statute mirrors Arkansas’ substantially.
3. Matter of Welfare of S. L. J., 263 N.W.2d 412. “Fourteen-year-old girl’s utterance of vulgar, offensive and insulting words to police officers, viz., fuck you pigs, did not constitute the utterance of fighting words and therefore could not be a predicate for a conviction of disorderly conduct and a finding of delinquency, where the words were directed at the officers sitting in their squad car from a distance of 15 to 30 feet by a small child who was on her way home when she turned to the officers and made the statement, and where, with the words spoken in retreat from more than 15 feet away rather than eye-to-eye, there was no reasonable likelihood that they would tend to incite an immediate breach of the peace or provoke violent reaction by an ordinary, reasonable person.” First Amendment protections applied here, although the statute in question was substantially similar to Arkansas’. The words “fuck you pigs” in this case were said in front of another 14 year old girl, and some 15 year old boys who were in custody. This is similar to what (name redacted) did, because even though (name redcated) may have said “fuck you,” it was while driving by in retreat.
4. The statement “I don’t need this fuckin’ school anyway” in concert with violently slamming a door was found to be constitutionally protected speech, even in front of other school children. The statement was made by a juvenile to a police officer in a school setting after the juvenile was called to the principal’s office to be informed that she was being expelled from school. L.M.A.W. v. State, 611 So.2d 497 (Ala. Cr. App. 1992)(conviction for disorderly conduct overturned).
5. “Shut the fuck up” and words to the effect of “don’t let the door hit you on the ass on the way out” were ruled to be constitutionally protected speech, even in front of minor child and directed at a teacher. B.E.S. v. State, 629 So.2d 761 (Ala. Cr. App. 1993). (Similar statute to Arkansas).
6. A juvenile calling a police officer a “fucking pig, fuckin’ kangaroo” and telling the officer “fuck you” during a traffic contact was found to be constitutionally protected speech. State v. John W., 418 A.2d 1097 (Me. 1980). Just like the R.I.T. court, Id., the John W. court also reasoned that police officers deal with these types of situations on an every day basis and therefore “fucking pig, fuckin’ kangaroo and fuck you” were not likely to invoke a violent response. The court did not even take into consideration whether the other people that heard these comments were offended or not.
7. Finally, the Arizona case of In Re Louise C. is almost directly on point with the case at bar. Louise C. was brought to the principal’s office in relation to conduct with another student. In the presence of the other student, the principal, and the vice principal, Louise C. was asked whether she planned to fight the other student. She lashed out and said “Fuck this, I don’t have to take this shit” and walked towards the door. When the principal asked her to stop she said “Fuck you, I don’t have to do what you tell me” and slammed the door behind her. She was later suspended from school for the incident. Louise C.’s statements and conduct were found to be constitutionally protected by the First Amendment. In Re Louise C., 3 P.3d 1004 (Az. App. 1999).