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.