Foul Speech versus the Freedom of Speech
One of the great features of American constitutional law is that the most modest of local ordinances often raise the most profound questions of freedom of speech. The citizens of Middleborough Massachusetts voted recently to adopt an ordinance that allowed a $20 fine on people who use loud and profane language in downtown areas and in public parks. The question is whether that statute runs afoul of the constitutional guarantees of freedom of speech, and, even if it does not, whether it should be adopted.
The two questions are intimately connected. With this ordinance, we have here the issue of regulation of speech in a commons, to which all have access rights, but to which no one has exclusive access rights. It goes without question that the ability of the state to regulate the commons has to be stronger than its ability to regulate conduct in private. It is a good sign that none of the defenders of the ordinance are moralists who resent the mere thought that others use that kind of vulgar language, which from time to time they may use themselves. They are people who do not wish to hear it in public places to which they have equal rights of access.
They have a point. Some form of common morality has to be observed, and if there are any rules that deal with nudity in public there should surely be, in principle, rules that deal with profanity in public as well. It is not that the regulators in this case are seeking to ban one political view in order to advance an other. They are trying to keep a sense of decorum afloat. One useful test as to the reasonableness of their efforts is that private home associations routinely impose these and other rules on their own members by contract, and they only do so because of the collective judgment (stronger than a hunch, but weaker than a scientific truth) that all are benefited more by the cessation of foul speech by others than they are hurt by the limits on their own ability to reciprocate.
Yet we are not out of the woods, or even the park, with those observations. The legal issues involve not only questions of morality, but also of political economy. This ordinance has to be enforced. Do we worry about disparate application by the police? Do we worry about the discretion to fine? Do we worry about how loud is loud enough, or how vulgar is vulgar enough? With many forms of speech that level of discretion is intolerable but with “low level” speech no one is ever quite sure.
So what is the bottom line? I would uphold the ordinance against an initial facial challenge that struck it down without bothering to see how it were administered. But I would be willing to consider a challenge to the statute as it applies in a particular case, or even as to its continued use, if one could show some degree of abuse in its day-to-day administration. It would take less to persuade me to lift the particular fine, and more to strike down the ordinance. But the threat that these actions could be brought, should in this case be enough to keep the police in line.
There is a larger lesson here. It is important even for libertarians to remember the need for state action. It is even more important for civil libertarians to know that they can go over the edge in First Amendment cases even as they, all too often, are happy with state regulation of other issues dealing with economic liberties that receive far too little protection today even against far greater government incursions that produce far greater social harm.
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Comments:
Nov '11
Re: Foul Speech versus the Freedom of Speech
Thank you!
Nov '10
Re: Foul Speech versus the Freedom of Speech
Should there be any regulation of speech in the commons? (I mean, as opposed to regulation of behavior that might include speech.)
Some speech crosses the line into behavior and thus can be proscribed. For example, sufficiently loud speech can be proscribed under "disturbing the peace" ("you could have said that same thing more politely ... or less noisily.") and threatening speech could be considered "conspiring or counselling to do bodily harm", which has its own legal category. Speech that crowds out other voices (as, say, the OWS marches versus counterprotests) may be proscribed, not on the basis of the speech used, but on the basis that they violate others' freedom of speech.
I think we wander into a morass when we allow generalized state control over speech with these undefinable categories. I would not wait to see whether it was abused. A good example of why this is a bad idea: Section 13 of the Canadian Human Rights Act, which is finally struck down. To our American friends: Stay away from that cliff's edge.
Edited on June 14, 2012 at 2:46amApr '12
Re: Foul Speech versus the Freedom of Speech
Ditto R. Craigen. There was a poem read on CBC about how quiet people are in public in Toronto and it was written by an immigrant whose home country was much louder. So judgement is the issue and here in Canada, the government has been ridiculously heavy handed. One of our universities even had people to overhear conversations and if they were not PC, to interrupt. This got cancelled but can you imagine it even being set up as a good plan?
May '10
Re: Foul Speech versus the Freedom of Speech
It strikes me that this is not terribly different than laws which ban smoking on the commons.
May '10
Re: Foul Speech versus the Freedom of Speech
I have no issue with the law ... in fact I wish more places had it and hope it gets enforced.
One does not have the right to be indiscriminately offensive. Banning profanity does nothing to interfere with the ability of a person to express their ideas.
May '12
Re: Foul Speech versus the Freedom of Speech
tomjedrz: I have no issue with the law ... in fact I wish more places had it and hope it gets enforced.
One does not have the right to be indiscriminately offensive. Banning profanity does nothing to interfere with the ability of a person to express their ideas. · 7 hours ago
Who decides what is profane? You and I may have very different ideas on what constitutes profanity.
I would use this as a recent example from Canada:
http://www.sunnewsnetwork.ca/sunnews/straighttalk/archives/2012/06/20120613-180325.html
Profane to one fluent in Spanish, to me it's just foreign words with a different accent.
Nov '11
Re: Foul Speech versus the Freedom of Speech
My own solution to the situation (not having public property, including public parks) isn’t especially useful or helpful in this situation. But since we do have public parks, we need to have rules about them.
So, the question I asked myself was what would a private group do, and Richard of course answers this when he talks about what private home owners associations do: voluntary rules agreed to by consent of voluntary members, as opposed to imposed by the state on unwilling subjects (popular as the rule might be with some).
Really, what I was looking for was a way for a libertarian (and indeed, in my case, an anarchist) could find such a rule acceptable. I was curious where the lines were (in a nation of 330 million people, this clearly isn’t the first time a thing like this has come up) with regards to free speech and profanity in a public park. Obviously the hosts on the local morning radio show talking about this weren’t law professors.
An aspect Richard thought of, that I didn't, not being a law professor, was uneven application.
So, thank you very much, Richard, for clarifying all that.
Aug '10
Re: Foul Speech versus the Freedom of Speech
Ordinances that regulate volume are reasonable, since sound volume can be measured in decibels. I would be upset if police were allowed to use their own judgement to decide what is "too loud".
As for profanity, it wouldn't be difficult to draft a list of "banned words" in advance. Seven Words You Can't Say On Television, and all that. That gets around the problem of police using their own judgement on what's considered "profane".
Still, it all seems a little silly to me.
Jul '10
Re: Foul Speech versus the Freedom of Speech
Our local city statute for loud noise is like that: it bans "loud and unnecessary" noise, with little guidance as to what that means, and no objective measurement provided for. Enforcing it is a nightmare.