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Foul Language and Free Speech: Does Being Offended Justify an Arrest?

While most people treat law enforcement officers with respect, there are occasions when a citizen will voice his/her dissatisfaction with law enforcement officers. One such case occurred in Fort Smith, when a driver yelled “f*** you!” through his car window as he passed an Arkansas State Trooper who was performing a traffic stop related to a different vehicle. After the trooper noticed the reaction of two children to the profane language, he promptly tracked down the driver in his vehicle, stopped him, and arrested him for “disorderly conduct.” The driver spent several hours in jail, but was eventually released and all charges against him were dropped. Despite this apparent resolution, questions remained – was the profane language unprotected or protected speech and was his profane yelling actually a violation of Arkansas’s disorderly conduct law?

Following his release, the driver filed a civil rights lawsuit alleging violations of his First Amendment right to free speech and Fourth Amendment right against unreasonable seizure.  In its opinion in Thurairajah v. City of Fort Smith, 2019 U.S. App. LEXIS 16573, __ F.3d __ (8th Cir. 2019), the Eighth Circuit Court of Appeals recognized that “the law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions . . . for speaking out.”  The driver was able to show that (1) his speech was protected; (2) the trooper’s adverse action against him would have a chilling effect on persons wishing to continue in the same type of speech; (3) the motivation for the arrest was at least partially related to the driver’s exercise of a protected activity; and (4) there was no probable cause or arguable probable cause for the arrest.

In this case, the key elements of the analysis related to whether the profane language was considered free speech and whether there was probable cause for an arrest for disorderly conduct.  The protected nature of the speech is clear.  In Thurairajah, the Eighth Circuit Court of Appeals explains that the profane language is in fact protected speech, citing to a Vietnam War era United States Supreme Court opinion finding a jacket with a similarly profane anti-draft message was protected speech.  Furthermore, the Eighth Circuit went on to explicitly confirm that “[c]riticism of law  enforcement officers, even with profanity, is protected speech.”

Although the content of the language is thus clearly protected, the scope and volume of the language could still potentially render it a violation of Arkansas’s disorderly conduct law, as the applicable Arkansas statute penalizes “unreasonable or excessive noise.”  However, in its opinion, the Eight Circuit Court of Appeals highlights the fact that “Arkansas courts have not previously concluded that a two-word yell could violate the disorderly conduct statute’s unreasonable or excessive noise provision.”  In fact, the Court of Appeals cites to one Arkansas case in which “the Arkansas Court of Appeals held that 20 seconds of public shouting involving foul language did not establish disorderly conduct.”  Based upon the applicable facts and the established case law, the Eighth Circuit Court of Appeals held the trooper failed to meet the minimum standard of” arguable probable cause” for the driver’s arrest, acknowledging that the “conduct may have been offensive, but it was not an unreasonable or excessive noise.”  While it may be appropriate for the driver’s mother to wash his mouth out with soap, it was unlawful for the trooper to arrest him for making the profane statement.