First Amendment Freedom of Profanity and Accompanying “Gestures” – Even Towards Police

The First Amendment protects a Utah residents rights to speak their opinions and frustrations, even by the use of profanity and accompanying gestures during dealings with police.

Photo by: John Nakamura Remy

First Amendment

The First Amendment to the Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The phrase “freedom of speech” gets thrown around a lot, yet many citizens may wonder exactly how free they can be with their speech, especially when dealing with police.

Profanity

Many individuals would not want to participate in a verbal altercation with a police officer, yet some may blurt out profanity or obscenities before thinking of the possible consequences. Fortunately, freedom of speech protects a person’s right to use profanity, whether spoken or nonverbal like the use of the middle finger. When a Utah resident is dealing with police, there is a good chance that emotions will be running high.

Photo by: Ron Bennetts

Someone facing an arrest or feeling like they were the recipient of a biased traffic stop might have some choice words for attending officers. Perhaps they were able to bite their tongue but couldn’t help flipping the bird toward less than friendly police. Or maybe a person’s normal vocabulary is similar to that of a sailors and using obscenities is just how they communicate with everyone. Regardless of why someone would use profanity with police, it might make officers uncomfortable but it is protected free speech.

Don’t take it too far

While everyone should feel free enough to use whatever language they want or give the middle finger when they feel like it, there are times when profanities and other obscenities could cross the line. If someone uses their harsh language to try to get others to join in a fight against officers, that could be considered disorderly conduct or inciting a riot. Another example is if the foul language being used describes sexual behavior against children that most people would find offensive or disturbing. In these and like incidents, using profanity could end with criminal charges.

Spoken crimes

Photo by: Jennifer Moo

There are some words and phrases beyond profanities that are also not protected under the First Amendment. Some of these include:
Threats of violence – Utah Code 76-5-107 warns residents that verbally “[threatening] to commit any offense involving bodily injury, death, or substantial property damage, and [acting] with intent to place a person in fear of imminent serious bodily injury, substantial bodily injury, or death” . . . is punishable as a class B misdemeanor.
Threats of terrorism – Utah Code 76-5-107.3 explains that “a person commits a threat of terrorism if the person threatens to commit any offense involving bodily injury, death, or substantial property damage, and: threatens the use of a [real or hoax] weapon of mass destruction . . . “ A verbal threat of that magnitude is a second degree felony.
Harassment – Harassing another person or as Utah Code 76-5-106 defines as “. . . with intent to frighten or harass another, [when the actor] communicates a written or recorded threat to commit any violent felony” is a class B misdemeanor.
Obstruction of Justice – According to Section 76-8-306, “An actor commits obstruction of justice if the actor, . . . inten[ds] to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense”. A couple ways someone could use their words to obstruct justice is by warning a suspect of police activity or by providing false information to law enforcement. Obstruction of justice is charged one degree less than the crime for which the person is obstructing.

Use freedom of speech wisely

Not all talking points or usage of profanities are protected free speech, but the First Amendment can help those who have a tendency to run their mouth when talking to law enforcement. If someone is facing charges due to their use of profanity when dealing with police or if they crossed the legal line with their words, it is best to consult with a criminal defense attorney before attempting to play the free speech card.