ALBUQUERQUE, N.M. — My kids are grown now. When they were little, like many families, we had a Curse Cup on the kitchen counter. Anyone using a “dirty word” had to put a dollar in the cup. The money went to charity and I am sure I could have bought a Porsche if I had followed Sir Walter Scott’s advice. But that’s another story. Today, we are going to look at one town’s public Curse Cup.
|“I have heard it said that a curse was like a stone flung up to the heavens and most likely to return on the head of him that sent it. ”
Sir Walter Scott
Earlier this month, the residents of Middleborough, Massachusetts, population 22,000, voted 183-50 to institute a $20 fine for swearing in public. The 233 people involved may or may not represent the population of this Boston suburb, but they did show up to vote for an ordinance that empowers police to issue a citation to anyone who uses profanity in public. And that’s now the law in Middleborough. Since, as Justice Harlan said in 1971, “one man’s vulgarity is another mans lyric,” Middleborough has to decide how it will enforce this new law.
Some residents did not agree with the vote, commenting that legislating morality and good parenting was not appropriate. Supporters responded that enforcement will be at the discretion of the local police, and directed at those who use profanity to accost others, whatever that means. One supporter has been widely quoted: “It’s not going to be just someone walking down the street dropping the F-bomb; it’s going to be when you’re actually making it uncomfortable for everyone else.”
Freedom of speech is one of our basic, and most fiercely protected, constitutional rights. The First Amendment to the Constitution of the United States makes it clear “Congress shall make no law … abridging the freedom of speech.” Our state Constitution provides “Every person may freely speak, write and publish his sentiments on all subjects … and no law shall be passed to restrain or abridge the liberty of speech.” The evolution of the law has established some limitations are necessary in a complex society, for example the right to speak freely does not include the right to yell fire in a crowded theater, and it has been wisely written that our constitutional freedoms stop at the tip of our neighbor’s nose. Generally, any law that attempts to limit freedom must specifically inform of the conduct which is prohibited and must provide clear guidance to law enforcement so that application of the law is even handed and non-discriminatory.
In the Middleborough case, making enforcement a matter of “police discretion” based on whether or not the officer is “uncomfortable” or believes the speaker is “making it uncomfortable for everyone else” raises some significant issues of constitutional law. If someone publicly curses democrats in a republican neighborhood, have they violated the law?
Can a church group demonstrate outside a homosexual’s funeral cursing the dead man’s sexual orientation? Either example is likely to make it “uncomfortable for everyone else.” On the other hand, if you’ve ever heard some fool screaming epithets at their kids, their wife, or even a harried waitress or counter clerk, Middleborough’s approach might seem like a good idea. George Washington called profane language “a vice so mean and low that every person of character detests and despises it.” But another great American , Mark Twain, was known to say, “profanity furnishes a relief denied even to prayer.”
Is the recent Massachusetts ordinance a reasonable limitation on free speech which is necessary to preserve society or is the ordinance a recipe for constitutional disaster? Of course, you can “Judge for Yourself” but you should carry a couple of extra twenty dollar bills if you visit Middleborough.
Alan M. Malott is a Judge of the 2nd Judicial District Court. Before joining the court, he practiced law throughout New Mexico for 30 years and was a nationally certified Civil Trial Specialist. If you have questions, contact Judge Malott at PO Box 8305 Albuquerque, NM 87198 or e-mail to: email@example.com. Opinions expressed here are solely those of Judge Alan M. Malott individually and not those of the court.