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F-Bombs for One, Freedom for All

By Justin Silverman, second vice president, New England First Amendment Coalition

When asked for his thoughts on the state of Massachusetts’ recent opposition to his town’s controversial profanity ban, Middleborough resident Willy Duphily shared what is likely the opinion of many on the topic.

“It is so typical in this country,” Duphily told The Boston Globe. “Everyone has rights that then take away the rights of us law-abiding citizens.”

At the heart of Duphily’s comment is a misguided battle between the profane and the proper. Fed up with foul-mouthed teens congregating around local businesses and — according to some residents — intimidating patrons, the town voted to enforce a 1968 bylaw banning public profanity (pdf, see Article 8) and made it easier for police to fine those heard cursing in public. Potty-mouthed protests ensued, however, and Attorney General Martha Coakley said on Oct. 10 that the bylaw is likely unconstitutional. The right of citizens to use profane language should be protected, she suggested, and the ban should not be enforced.

What seems to be lost during First Amendment challenges such as this one is the ability to recognize just what our constitution protects. Duphily’s comment seems to represent the view that this conflict is solely about foul-mouthed teens and the effect on those who happen to hear them. On its face, the call to end the profanity ban is about protecting the right of these teens to use foul language. But it’s also much more than that — it’s about protecting the right of everyone to express themselves even if others find that expression offensive. It is not an overstatement to say that by protecting the right of teens to curse in public, we are also protecting the freedom of discourse on which our democracy depends.

Though a loose analogy, I think the following anecdote is to the point: As Occupy protesters last year seized public parks across the country, I was asked if I had considered in my defense of those protesters all the tax money being used for cleanup efforts and increased police presence. I not only considered it, I replied, but I welcomed the opportunity to spend my tax dollars on protecting the right of others to protest. I didn’t agree with much of what those protesters were saying, but I knew that by protecting their right to be in those parks, I was solidifying my own right to do the same when compelled by a different cause.

Regardless of which of the five First Amendment freedoms are at play, the same principle applies: We should unwaveringly support the freedom protected by the constitution, even if we disagree with how others use that freedom. Like carrying the financial burden of a protest in which one is not involved, protecting the right of teens to throw F-bombs in public is a small price to pay for the freedom of speech that is given to us all.

This distinction is probably best described in a case decided by the U.S. Supreme Court just three years after Middleborough’s original profanity ban took effect. Cohen v. California, 403 U.S. 15 (1971), involved a man who entered the Los Angeles County Courthouse wearing a jacket that displayed the words, “Fuck the Draft.” Police arrested him under a law that banned “offensive conduct.” In its decision to declare the ban unconstitutional, the court provided a strong defense against any effort by the government to curtail offensive speech. They are cautionary words that help frame the situation in Middleborough:

[W]e cannot indulge the facile assumption that one can forbid particular words without running a 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. Id. at 26. (Emphasis added.)

As for those who choose to use words that are particularly offensive, the court added:

[These are] side effects of the broader enduring values which the process of open debate permits us to achieve. … 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. Id. at 25. (Emphasis added.)

All individuals. The foul-mouthed teen and Mr. Duphily alike. It’s difficult to remember, but so important that we do, that individual cases may seem like they protect the rights of some, but when considered as a buttress between citizens and their government, they in fact protect the rights of us all. An end to the profanity ban in Middleborough is a victory not just for the cursing few, but for every resident of that town.

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