David Hudson on fighting words and anti-profanity laws in the US

Can you be arrested in the United States for uttering profanities at the wrong place and wrong time? Shockingly, yes. You may be thinking, “but this is America, I have the First Amendment right to swear all I want! [insert list of creative profanities]!”

In the April edition of ABA Journal, FIRE legal fellow and Vanderbilt University Law School professor David L. Hudson discusses the tension posed by the continued existence of anti-profanity laws, the fighting words doctrine, and the First Amendment. According to Hudson, “People can, and have been, arrested for uttering profanity in public, cursing in a canoe, engaging in a toilet tirade in their own home, or cursing near a school or church.”

Outdated laws still litter the books, including:

A 1962 South Carolina law prohibits cursing on a public highway or within hearing distance of a church or school. A Mississippi law, passed in 1848, prohibits using profane or vulgar language in the presence of two or more people. Those in violation can receive a $100 fine or up to 30 days in county jail. A Rhode Island law, enacted in 1896, provides that: “Every person who shall be guilty of profane swearing and cursing shall be fined not exceeding five dollars ($5.00).”

While these laws are subject to challenge, Hudson argues that the “reason why such laws are sometimes considered constitutional is the fighting words doctrine,” defined in Chaplinsky v. New Hampshire (1942) as “words which by their very utterance inflict injury or cause an immediate breach of the peace.”

While the Supreme Court has all but abandoned the fighting words doctrine, it remains alive in the lower courts. Hudson notes that as recently as 2016, South Carolina’s anti-profanity law was upheld after the conviction of a woman for saying “This is some motherfucking shit” within 60 yards of a local church.

To learn more about fighting words, anti-profanity laws, and the First Amendment, read Hudson’s article on the ABA Journal website. If you are interested in knowing more about the Supreme Court’s take on the fighting words doctrine, check out FIRE’s First Amendment Library overview essay on fighting words, also authored by Hudson.