When is cursing illegal in the U.S.?

Question

For example, I've heard before that it's actually illegal to swear at a police officer (I've also heard that's true in the U.K. as well, although that's not my question).

However, what counts as "swearing" is a very subjective thing, and clearly there are plenty of contexts where no word is off-limits (because, thankfully, free speech is a thing here), so it seems like a difficult thing to enforce. I've also never heard of anyone actually being prosecuted for this.

So, the three parts of my question are:

• When is it illegal to swear, if ever (I'm guessing this probably varies a lot by state, so I'd be okay with just a federal law answer)?
• What actually counts as swearing (under each law / circumstance)?
• What penalties would I be facing (under each law / circumstance)?

Answer 1

Denver lawyer David Lane has said, “The First Amendment lives in a rough neighborhood and if you can’t stand the neighborhood move to China … or somewhere the First Amendment does not exist.”

"One man's vulgarity is another's lyric." Cohen v. Cali. 403 U.S. 15, 25 (1971)

At this point, we need to define illegal as used in your question. For instance, do you mean "you can face any form of punishment"? If so, this question is extremely broad and governed by multiple sets of laws.

Additionally, one should note that this is a Federal Question. The First Amendment, through the Due Process clause applies to states as well. Therefore, there will be extremely little discrepancy (if any - first impression issues being the main differences probably) between the States,.

The FCC can limit profanity on air. Additionally, Title 18 of the United States Code, Section 1464, (Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined under this title or imprisoned not more than two years, or both. ) prohibits the utterance of any obscene, indecent or profane language by means of radio communication.

The USPTO can limit Trademarks with "vulgar" meaning. (See EDIT below for update.)

In School: High school student's First Amendment rights were not violated in suspension for uttering obscenity, regardless of whether she was merely repeating and returning words originally directed at her, particularly where words were clearly disruptive as they were heard by 90 students in cafeteria and, in opinion of assistant principal, were “fighting words.” Heller v. Hodgin, S.D.Ind.1996, 928 F.Supp. 789.

Fighting Words: These seem to be words that would invoke, or are likely to invoke a fight.

Fighting words claim upheld: Arrestee's speech when crowd gathered near fallen tree that had blocked traffic constituted unprotected fighting words, so that his arrest under city disorderly conduct ordinance did not violate his First Amendment free speech rights; arrestee's repeated use of the word “bitch,” his accusation of matricide directed toward his sister, his use of the phrase “fucking queer,” his pushing of third party and his raised voice all tended to show that his conduct, under the circumstances, had tendency to provoke physical altercation.

Fighting words claim not upheld: Detainee's profane words to police officer as officer conducted Terry stop, “son of a bitch,” while unpleasant and insulting, were not “fighting words,” given officer's confirmation of fact that words did not cause anyone to fight or become angry; thus, words could not constitute violation of disorderly conduct statute and in turn could not supply probable cause for disorderly conduct arrest.

In addition to fighting words, true threats and incitement to imminent lawless action are not protected under the First Amendment.

Additionally, the government can regulate free speech in public schools (hence Free Speech Zones) and while in their employ (no yelling at your boss if you want to keep your job).

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It is not part of the main question, but free speech inside the court room. Well, the Judge is pretty much king in a courtroom. What he says goes. (more or less, like nothing toooooo crazy). In a courtroom, if you do something a Judge doesn't like, he can hold you in contempt of court. (You get no jury for contempt cases.)

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EDIT: Since I wrote this answer, new law came out from the Supreme Court in Matel v. Tam, 582 U.S. ___ (2017). The Supreme Court affirmed the finding of the Federal Circuit that the disparagement clause [is] facially unconstitutional under the First Amendment’s Free Speech Clause.

Simon Tam, lead singer of the rock group “The Slants,” chose this moniker in order to “reclaim” the term and drain its denigrating force as a derogatory term for Asian persons. Tam sought federal registration of the mark “THE SLANTS.” The Patent and Trademark Office (PTO) denied the application under a Lanham Act provision prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). Tam contested the denial of registration through the administrative appeals process, to no avail. He then took the case to federal court, where the en banc Federal Circuit ultimately found the disparagement clause facially unconstitutional under the First Amendment’s Free Speech Clause.

The decision aptly concludes with: "If affixing the commercial label permits the suppression of any speech that may lead to political or social “volatility,” free speech would be endangered."

Answer 2

A recent state supreme court case spoke directly to this issue. Ruling date: June 25, 2015.

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The U.S. Constitution protects your right to curse at the police.

The Seattle Times reports here that the Washington State Supreme Court has ruled in the case of State of Washington v. E.J.J.:

"First Amendment protects profanity against police"

A teenage boy convicted of obstruction after yelling and cursing at three Seattle police officers while they were investigating a disturbance at his house had a First Amendment right to behave the way he did, the Washington Supreme Court said in an opinion Thursday.

Citizens who curse at police and call them abusive names while they’re investigating a crime are protected from arrest by the First Amendment’s guarantee of free speech, the state Supreme Court ruled Thursday in a case out of Seattle.

Answer 3

Although swearing at a police officer in itself is not illegal, the police are very likely to try to find something else to charge you with – along the lines of "contempt of cop." The law is very nuanced, one cannot say that anything is blanket legal or illegal.

Answer 4

You're asking about an exception to the right to free speech, and it turns out there's a good page on that question on Wikipedia. I was amused to discover that, among the exceptions recognized by the Supreme Court, are "fighting words" and "offensive speech," which I believe would be the closest proscriptions on "cursing." ("Threats of violence" are also generally not protected.)

I expect there is a good deal of variation in how U.S. jurisdictions have chosen to regulate and control unprotected speech. I would also be interested to see examples.

One recent case that directly addresses your question is Washington v. E.J.J., in which the Washington Supreme Court confirmed that the First Amendment protects the right to curse at police.

Answer 5

3 cases spell out what is not free speech. Fighting words Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), Immanent threat, Brandenburg v. Ohio (1969), Obscenity Miller v. California, 413 U.S. 15 (1973),

This does not cover what you can say on the radio pursuant to successful FCC court cases which is why we have satellite radio, also you generally can't curse at City Council meetings. The Coen case in 1971 is the good old fuck the draft t-shirt worn by a guy at a government building and it was ruled free speech one man's obscenity is another man's lyrics or poetry. Sometimes somebody else's copyrighted material isn't necessarily Criminal but there is a way around that called Fair Use Doctrine under copyright law.

One of the things that many government agencies have done to people that they simply don't like this to trespass them from the property. Now before the government can actually trespass you they have to give you a hearing on the matter and it has to be one that actually contains due process. If your criminally trespassed and get arrested for trespass a good lawyer should be able to get the case dismissed for denial of 14th Amendment rights as what happened to me.

Answer 6

According to the website firstamendmentcenter.org:

The First Amendment protects a great deal of offensive, obnoxious and repugnant speech. As Justice John Marshall Harlan wrote 40 years ago in Cohen v. California, “one man’s vulgarity is another’s lyric.” In that decision, the Court ruled that an individual had a First Amendment right to wear a jacket bearing the words “Fuck the Draft.”

So a general law that prohibits all profanity will run into serious First Amendment hurdles, as recognized by the suburban Chicago city of Park Ridge, Ill. Perhaps in the spirit of the Cohen ruling, the city rid its books of a law that made it illegal to use profanity on streets, alleys and other public places. The police chief of the suburb told the Associated Press that free-speech concerns formed part of the reason for erasing the law.

Park Ridge’s move has much to commend it. But people shouldn’t mistakenly believe that the First Amendment always protects profanity. It doesn’t.

Certain categories of speech are not entitled to First Amendment protection, including fighting words, true threats and incitement to imminent lawless action. If a person engages in profane fighting words or utters a true threat with profanity, those words may not be protected speech.

Likewise, a speaker who uses profanity to stir up a crowd to immediate lawless action (like a riot) may have crossed the line from protected speech into unprotected incitement.

Furthermore, though you may have a right to curse on the street, don’t assume you have a right to curse at your public employer or at your public school. Context — as well as content — is important in First Amendment law. The government has greater power to regulate speech when it acts as employer or educator than it does when it acts as sovereign.