The American Civil Liberties Union of Wisconsin is urging the Kenosha City Council to reject a patently unconstitutional ordinance proposal that would allow police to issue $118 tickets for the use of “profane, vile, filthy or obscene language” in the presence of a police officer or firefighter.
The City’s Public Safety and Welfare Committee approved the proposed modification of an already unconstitutional provision of the Kenosha disorderly conduct ordinance on Monday. The City Council will vote on the proposed ordinance on September 7, 2009.
Chris Ahmuty, the ACLU of Wisconsin’s executive director, said, “It is astonishing that Kenosha, after all the criticism of the arrest of Harvard Professor Henry Louis Gates for shouting at a police officer, would even consider enacting such an obviously unenforceable ordinance.”
“This ordinance is plainly unconstitutional,” said Larry Dupuis, the ACLU of Wisconsin’s legal director. “As far back as 1974, the Supreme Court struck down a nearly identical ordinance that made it illegal to ‘curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police.’"
In that case, called Lewis v. City of New Orleans, the Court said ‘the freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.’
"As long as a person is not interfering with the police carrying out their duties," said Dupuis, "the rule for officers should be the same rule we all learned in preschool: ‘sticks and stones can break my bones, but names can never hurt me.’”
Simply, the government cannot prohibit the use of public profanity. In Cohen v. California in 1971, the Supreme Court overturned a disorderly conduct conviction of a man who wore a t-shirt that read "Fuck the Draft" in a courthouse. But even beyond passive but profane t-shirt protests, police can already address disorderly conduct, disturbing the peace with municipal noise ordinances, even inciting riots.
"In America, we don't have 'speech police' deciding what language is appropriate," said Dupuis.
Dupuis also pointed out that the Court in Cohen said, ‘[O]ne man’s vulgarity is another man’s lyric.’ After the chairperson of the committee told the Kenosha News that the proposed ordinance would allow the police to arrest someone for ‘being a knob,’ some people consider the word ‘knob’ (a slang term for penis) to be ‘vile, filthy and obscene.’ The chairperson probably wouldn't like to spend time in the Kenosha jail for using that term.
The ACLU further urges the Council to take the opportunity presented by the proposed amendment to repeal the existing, but seldom-enforced, provision of the ordinance which forbids the use of “profane, vile, filthy or obscene language in any public place within the hearing of other persons.”
Read the full Kenosha News story with quotes from local alders and a robust comments section with many pro-free speech posts. There is also a Fox 6 story with video. This issue even made UPI's "odd news" section.