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home : opinions : commentary September 14, 2014

11/6/2013 9:46:00 AM
'Free' and other 4-letter words
Kenneth A. Paulson
Inside the First Amendment

No matter how much you support free expression, there's always something that can challenge your beliefs.

Some are unsettled by violence on television; others have second thoughts about sexist or racist Web sites. Others question liberties taken in provocative books or art.

I can defend any banned book or controversial painting, but somehow the sight of a guy wearing a "F--- You" T-shirt at a county fair or football game gets under my skin.

You've seen him. Apparently unable to afford the "If I Only Had a Brain ..." T-shirt, he wears America's most overused phrase with pride.

The tacky T-shirt puts parents in a tough spot. They try to steer their kids in another direction, determined to avoid an embarrassing moment or question. Why doesn't somebody do something about this rude behavior? Shouldn't government be able to stop public vulgarity of this sort?

Of course, that's when I come to my senses.

Public profanity isn't pretty, but it's almost impossible for government to constitutionally designate some words as acceptable and others as inappropriate. The truth is that public profanity can violate our sensibilities, but generally doesn't violate the law.

The U.S. Supreme Court concluded long ago that a profane expression cannot be the sole grounds for prosecution. In a landmark case in 1971, the high court dismissed a charge of disturbing the peace against a man whose jacket bore the message: "F--- the draft." In finding that "one man's vulgarity is another's lyric," the court essentially barred the future prosecution of vulgar written messages, including bumper stickers and T-shirts.

Courts face an extraordinary challenge in addressing these issues. Words that were once shocking to polite society are now staples on both cable and broadcast television. Rather than try to legislate language, government can realistically only prosecute the disruptive behavior that sometimes accompanies profane language.

Profane words may be constitutionally protected, but that doesn't give us a license to say whatever we want, wherever we want, and most important, however we want. In other words, "fire" is not the only word you can't shout in a crowded theater.

Ken Paulson is executive director of the First Amendment Center.

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