Does the First Amendment Protect a Right to Verbally Abuse the Police?
Editor’s note: This post contains vulgar language that isn’t suitable for children and quite possibly many adults. If you’re an email subscriber, your spam filter probably won’t like it, either. Also, it is quite long.
A federal court of appeals recently ruled in favor of a man who called a group of police officers “bitch ass fucking pigs,” “motherfuckers,” and “dirty rat bastards.” It found that his arrest on disorderly conduct charges was unjustified because “mere epithets” directed at a law enforcement officer, no matter how coarse or profane, do not constitute fighting words and are protected by the First Amendment. Wood v. Eubanks, 25 F.4th 414 (6th Cir. 2022). This raises the question: do police officers really have to put up with this?
Police officers report that they are frequently subjected to verbal abuse. A 2016 Pew Research Center survey found that more than two thirds of police officers reported being verbally abused by a member of the public in the past month. Another survey found that officers overwhelmingly believe that verbal abuse from the public has increased since 2020. “Verbal abuse” includes some extraordinarily vicious remarks. A report from the Brookline, Massachusetts Police Department cataloged some specific examples, ranging from “fuck you and your family” to “I hope you die.”
Being targeted by comments like this is discouraging to officers and may contribute to the current challenges police face in morale, recruitment, and retention. Verbal abuse also seems likely to harm the relationship between police and the communities they serve. Studies show that when police officers direct profanity at citizens, the officers’ actions are viewed negatively by community members and any force used by the officers is more likely to be seen as excessive. It would seem to follow that when citizens verbally abuse officers, it may affect officers’ perception of community members and may influence how officers choose to interact with citizens.
The federal courts have found increasingly severe verbal abuse to be protected speech. The First Amendment generally protects the right to free speech, but that right is subject to limitations. Threats, fraudulent speech, and obscenity are not protected. Similarly, “fighting words,” statements that are likely to provoke a violent response or an immediate breach of the peace, fall outside the First Amendment umbrella. The fighting words doctrine was born in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), where a pamphleteer called a city official a “racketeer” and a “damned Fascist.” The Supreme Court ruled that those were unprotected fighting words and could support the pamphleteer’s arrest and conviction under a New Hampshire law that made it a crime to “address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place.” (New Hampshire’s courts had authoritatively construed the law to extend only to fighting words.) The Court stated that fighting words “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”
Chaplinsky has never been overruled, but is an anachronism today. It has been effectively undermined by a series of Supreme Court decisions beginning in the 1970s:
- In Cohen v. California, 403 U.S. 15 (1971), a man was charged with disturbing the peace after wearing a “fuck the draft” jacket in a courthouse hallway. The Court found that the arrest violated the First Amendment. The jacket did not contain fighting words, as it was not a “direct personal insult” to anyone. And while it was coarse and profane, “one man’s vulgarity is another’s lyric” and there was no principled basis for removing any particular word or term from the “public vocabulary.”
- In Gooding v. Wilson, 405 U.S. 518 (1972), Vietnam War protestors blocked the entrance to an Army building. When police sought to remove them, the defendant said to an officer, among other things, “You son of a bitch, I’ll choke you to death.” He was charged and convicted under a Georgia statute making it a misdemeanor to use “opprobrious words or abusive language, tending to cause a breach of the peace.” Justice Brennan, writing for the majority, found the statute overbroad, as the “dictionary definitions of ‘opprobrious’ and ‘abusive’ give them greater reach than ‘fighting’ words.” It is important to note that Gooding did not hold that the specific statements made by the defendant were protected speech. Indeed, it seems obvious that saying “I’ll choke you to death” in the course of a physical confrontation is an unprotected true threat.
- In Lewis v. City of New Orleans, 415 U.S. 130 (1974), the Court considered a case in which a woman whose son had just been arrested allegedly called an officer (in the Court’s abbreviation) a “god damn m. f. police.” She was charged with, and convicted of, violating a New Orleans ordinance that made it a crime to “curse or revile or to use obscene or opprobrious language toward or with reference to” an officer in the course of his or her duties. Following Gooding, in another opinion written by Justice Brennan, the Court found the ordinance overbroad.
More than a decade later, the Court returned to related issues in City of Houston v. Hill, 482 U.S. 451 (1987). The case arose when Hill saw two police officers speaking with another man, who had taken it upon himself to stop traffic on a busy street to allow a vehicle to enter the roadway. Fearing that the officers were preparing to arrest the other man, Hill started yelling at the officers, including asking them to pick on someone their own size. There was no evidence of slurs or epithets, but when Hill admitted that he was trying to interrupt the officers, he was charged with a violation of a city ordinance that made it unlawful to “oppose,” “abuse,” or “interrupt” an officer in the execution of his or her duty. As in Gooding and Lewis, the Court – in an opinion again written by Justice Brennan – found the ordinance was overbroad and violated the First Amendment because it was not limited to fighting words. It also noted that the ordinance gave officers unfettered discretion to enforce it against those who annoy or offend them, and stated that “[t]he 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.”
The Hill Court referenced Justice Powell’s concurrence in Lewis, where Justice Powell expressed the opinion that “a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.’” As I read Hill, the Court discussed but did not necessarily endorse Justice Powell’s suggestion. But the idea has taken root, and lower courts sometimes treat verbal abuse that might be unprotected fighting words if said to anyone else as protected speech when said to police. See, e.g., Wood, supra (asserting that the Supreme Court has “made clear” that police area held to a higher standard of restraint than other citizens); United States v. Poocha, 259 F.3d 1077 (9th Cir. 2001) (when park rangers attempted to arrest a man, a crowd gathered; a member of the crowd allegedly clenched his fists, puffed out his chest, and shouted “fuck you” at a ranger; he was charged with and convicted of disorderly conduct, but the reviewing court reversed, finding that his comment was protected speech and not fighting words; it stated that “the Supreme Court has suggested [that] the fighting words exception . . . requires a narrower application in cases involving words addressed to a police officer,” and cited the reference in Hill to Justice Powell’s statement in Lewis). See also United States v. Lanning, 723 F.3d 476 (4th Cir. 2013) (citing Poocha for the idea that a trained officer should be less likely to respond to fighting words).
Whether influenced by Justice Powell’s reasoning or not, the federal courts have generally begun to protect speech far more vicious and abusive than what the Supreme Court deemed unprotected fighting words in Chaplinsky. See, e.g., Greene v. Barber, 310 F.3d 889 (6th Cir. 2002) (calling an officer an “asshole” and telling him he was “stupid” was protected speech and not fighting words; the fighting words doctrine is “very limited” as “[s]tandards of decorum have changed dramatically since [Chaplinsky was decided] and indelicacy no longer places speech beyond the protection of the First Amendment”).
North Carolina case law is not quite so permissive. North Carolina criminalizes disorderly conduct, which includes creating a public disturbance through abusive language likely to provoke violence, i.e., fighting words. See G.S. 14-288.4 (referring to “any utterance, gesture, display or abusive language which is intended and plainly likely to provoke violent retaliation and thereby cause a breach of the peace”). Perhaps in part because the leading state precedents are decades old, the cases decided under that statute generally suggest that verbal abuse directed at an officer – or a civilian – violates the statute. See, e.g., State v. McLoud, 26 N.C. App. 297 (1975) (holding that an officer had probable cause to arrest the defendant for disorderly conduct after she “directed profane, racist, and vulgar epithets” at the police); State v. Raynor, 33 N.C. App. 698 (1977) (stating that the defendant was properly arrested for disorderly conduct after “cursing,” using “abusive language,” and threatening to “get” a cab driver who refused to take the defendant where he wanted to go). But cf. State v. Ellis, 374 N.C. 340 (2020) (ruling that an officer did not have reasonable suspicion of disorderly conduct sufficient to stop a vehicle where a passenger displayed his middle finger out the window; the officer did not know who the intended target of the display was and there was no indication of an impending violent reaction by another driver or anyone else).
Furthermore, in the main, the North Carolina cases have not endorsed Justice Powell’s concept that a different standard applies to speech directed at a police officer. See State v. Cunningham, 34 N.C. App. 72 (1977) (defendant was properly convicted of disorderly conduct when, after receiving a parking ticket, he told the ticketing officer to “get his g.. d… ass out of the way” before the defendant ran over him; although the officer, “as a police officer, would be expected to show restraint when confronted with abusive language” such that “as a practical matter the likelihood of violent retaliation may have been slight . . . the jury could reasonably interpret the defendant’s utterances as fighting words likely to provoke the average person to retaliation”). Cf. In re V.C.R., 227 N.C. App. 80 (2013) (as an officer was walking away from a juvenile after telling her to extinguish a cigarette, she said “What the fuck, man?”; the court seemed to conclude that the officer then had reasonable suspicion to stop the juvenile for disorderly conduct, reasoning that “[w]hile merely stating an obscenity to another individual, whether that person is a policeman or a civilian, may be protected speech, we believe an officer is not precluded from approaching any individual who is standing in public and yelling obscenities, as such actions might lead to a breach of the peace”).
North Carolina’s courts are not bound by the federal cases discussed above. But defendants convicted in state court may challenge their convictions on First Amendment grounds in federal habeas. See, e.g., Brooks v. North Carolina Dept. of Correction, 984 F.Supp. 940 (E.D.N.C. 1997) (an officer was attempting to control a crowd that included petitioner; petitioner allegedly told the officer “don’t put your damn hands on me” and that he was “not going any fucking where”; petitioner was convicted of delaying and obstructing the officer; the federal court granted habeas relief finding that the conviction violated the First Amendment as the petitioner’s speech was protected and did not amount to fighting words).
What about RDO? Verbally abusive language directed at officers sometimes results in a charge of resisting, delaying, or obstructing an officer in violation of G.S. 14-223. But as Phil Dixon explained in this blog post, our appellate courts have held that merely cursing at or insulting an officer does not amount to RDO. For example, in State v. Humphreys, 275 N.C. App. 788 (2020), a woman was “belligerent, cursing, and very loud” after a police dog alerted on her car in a school parking lot. Though not noted in the opinion, the charging documents in the case allege that her comments included “fuck you” and “fuck all of you motherfuckers.” She was charged with, and convicted of, RDO, but the court of appeals reversed the conviction. It described her as “merely remonstrating” with the officers and cited a line of cases beginning with State v. Leigh, 278 N.C. 243 (1971), for the proposition that verbal remonstration is not obstruction. In other words, verbal abuse alone does not amount to RDO.
Of course it is possible to obstruct an officer while also cursing at him or her. And in some circumstances, loud verbal abuse may make it impossible for the officer to hear others, or to make him- or herself heard, and so the abuse may constitute RDO. But that will typically be a function of the timing and volume of the speech more than its content.
So what’s the law? It is clear that a state may not criminalize opposing or criticizing the police. Such a viewpoint-based restriction would be unconstitutional. Likewise, a state may not criminalize the use of curse words to express one’s opinion, whether about the police or anything else. See Cohen, supra. On the other hand, a state may criminalize the use of “fighting words” that are likely to provoke violent retaliation. And North Carolina has done so, at least when the use of fighting words creates a public disturbance, through its disorderly conduct statute. Unfortunately, the North Carolina cases and the federal cases are somewhat inconsistent regarding what sorts of utterances qualify as fighting words. Some of the federal cases seem nearly to eliminate the category of fighting words when directed at law enforcement officers, while our state cases suggest that profane verbal abuse directed at an individual qualifies as fighting words, whether the target is a police officer or a civilian. This puts officers in a situation where enforcing a state law may earn them a federal civil suit, so they may wish to exercise their discretion by being very cautious about making disorderly conduct arrests based on epithets directed at them.
Among the factors that may be relevant to whether verbal abuse crosses the line into fighting words include (1) the specific words that are used (“you’re a motherfucker” may be worse than “you’re an ass,” and some cases suggest that certain racially abusive words may be even more likely to be deemed fighting words), (2) whether the words are directed at a situation or at a person (“this is bullshit” is clearly protected speech, while “you’re a piece of shit” may not be), (3) the volume at which the words are spoken, (4) whether the words are repeated, (5) how far apart the speaker and the recipient are, (6) whether the speech is accompanied by aggressive gestures, (7) how the addressee and bystanders react to the speech, and (8) any other circumstances relevant to whether violence is a likely result of the words. See generally United States v. Bartow, 997 F.3d 203 (4th Cir. 2021) (reversing a defendant’s conviction for the Virginia crime of “abusive language” because the defendant’s remarks did not constitute fighting words; the defendant entered a store and made “offensive and bizarre” comments to multiple people, “laden with references to various bodily functions, sexual diseases, genitalia, and ultimately, a noxious racial epithet,” but the overall meaning was “difficult to discern”; the court opined that it was “rare” but possible for speech to constitute fighting words, and that the analysis must be case-by-case; in finding that the defendant’s words were not fighting words, the court considered the lack of evidence of aggressive actions accompanying the words and the lack of preparations for violence by the recipients of the statements).
A bit of perspective. Most of us do not routinely face verbal abuse. And most of us have remedies if we are targeted by slurs and expletives. Judges, of course, may hold verbally abusive litigants in contempt. See G.S. 5A-11(a)(2) (criminal contempt includes in-court behavior “tending to impair the respect due [the court’s] authority”). But even the rest of us have options. We could contact HR if we faced abuse at work. We have the authority to exclude from our homes those who speak viciously to us. If we were verbally abused on the public streets, we might call the police and ask them to put a stop to it. At a minimum, we could walk away. By contrast, in many situations law enforcement officers have few available remedies for verbal abuse. When they are harangued in the course of making arrests, controlling crowds, or performing other responsibilities, they may not even have the option of leaving the scene without being derelict in their duties – putting their jobs and perhaps public safety at risk. So the question of when verbal abuse becomes unprotected fighting words or arrestable disorderly conduct is especially important to officers.
It is also important from the community’s point of view. Courts are understandably concerned that allowing the police to arrest those who engage in abusive speech risks some officers misusing that power to arrest those who are merely critical or disrespectful. The Lewis case, where the distraught mother of an arrestee was herself arrested after a single profane utterance criticizing an officer, seems to illustrate the concern. The risk of unchecked misuse of disorderly conduct and similar laws may recede somewhat as more and more interactions between the police and the public are recorded, allowing for later independent review.
Zooming out even further, it is worth noting that other countries take different approaches towards abusive speech. It is well known that European countries balance free expression and other considerations differently than we do. In Germany, it is a crime to deny the Holocaust. In some places, this different view carries over to regulating citizens’ interactions with the police. For example, in Spain, demonstrating a lack of respect or consideration for an officer in the course of his or her duties is an infraction punishable by a fine. See Ley Organica 4/2015 Art. 37.4. France, Belgium, and the Netherlands also have laws concerning insulting speech directed at police officers. Whether such provisions are wise or repressive (and whether our more absolute approach to free speech is liberating or coarsening) may be a matter of perspective.
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