Like the ends of a vise squeezing, squeezing the delicate ears of the middle of our great nation, the highest courts in Washington State and New York have confirmed what should never have been a question: cursing at a cop is not a crime.
Upholding a minor’s First Amendment rights, the Supreme Court of Washington overturned “E.J.J.’s” conviction for obstruction when he yelled curses at police as they arrested his sister for intoxication:
“While E.J.J.’s words may have been disrespectful, discourteous and annoying, they are nonetheless constitutionally protected,” Associate Chief Justice Charles Johnson wrote for the six-justice majority. When citizens exercise their right to criticize “how the police are handling a situation, they cannot be concerned about risking a criminal conviction for obstruction.”
Packed within these words are some significant concepts, not the least of which is the persistent complaint by police that people no longer behave respectfully toward them.
While “contempt of cop” is part joke, part explanation for the otherwise inexplicable use of force to harm, even kill, someone who the cops decide needs to be taught a lesson in how to show them the respect they desire, not deserve, it’s one step beyond: it is a violation of the Constitution. You know, that same Constitution that they swear to defend? That basic law of the land, superior to all those other legislated laws that they adore so greatly that they take comfort in harming others because the laws so desperately need to be upheld.
When the explanation for anything from arrest to death relies on some platitude about the sanctity of the law, this too is the law. Be as sanctimonious as you want, but uphold all the laws, not just the ones that say you can’t smoke dope.
And if this complaint has a familiar ring to it, the connection between using language that meets another person’s sense of “respectfulness” and the claim that such speech is unprotected by the First Amendment. Some may call it hate speech. Some may call it harassment. Some will harp on how it’s mean and disrespectful. And this may all be quite true.
But it remains a constitutional right to use words that are “disrespectful, discourteous and annoying.” The Constitution does not promise you a world that doesn’t annoy you. Get over it.
In New York, Richard Gonzalez went a bit nuts in the subway, which happens sometimes, and screamed curses at the police. This cause a police sergeant to stop him, whereupon he “observed an illegal knife.” How this is even possible is unexplained, as the parties stipped that if the stop was lawful, the possession was solid. But even given New York’s knife laws, it’s impossible to know that a knife is illegal by merely observing it.
In an opinion of remarkable brevity, even for a court that still types out each decision on a Royal manual typewriter, the unanimous Court of Appeals held:
Here, however, there is no record support for the motion court’s determination that defendant’s rant against the police officers constituted the crime of disorderly conduct. ” ‘[A] person may be guilty of disorderly conduct only when the situation extends beyond the exchange between the individual disputants to a point where it becomes a potential or immediate public problem’ “
The decision was grounded in the elements of disorderly conduct, Penal Law § 240.20:
A person is guilty of disorderly conduct when, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof:
3. In a public place, he uses abusive or obscene language, or makes an obscene gesture;
Notably, the statutory language appears to suggest that everything about the law is flagrantly unconstitutional, from intentionally causing public “annoyance” by the use of “abusive or obscene language” or an “obscene gesture,” whatever that means. And indeed, in other cases, the Court of Appeals has held that annoying conduct is protected by the First Amendment, and its prohibition is unconstitutional.
But crimes like disorderly conduct often evade constitutional review, even though there are literally thousands of “dis con” pleas annually, as they provide an outlet by virtue of the fact that disorderly conduct is an infraction rather than a misdemeanor, such that it’s not characterized as a criminal offense, carrying with it the burden of a person having been convicted of a crime.
That said, the Court’s dismissal of Gonzalez’s “rant” as rising to the point where it became a “public problem” is curious, in that it would seem to have clearly satisfied the element:
Defendant shouted obscenities at police officers in a subway station in Manhattan, provoking looks of surprise and curiosity from some passengers and evasive movements from others.
Of course, had the Court directly addressed the facial unconstitutionality of the disorderly conduct statute, it would have required more than a three page opinion, which is a lot of work on that old Royal.
But while these decisions confirm the right to curse at cops, Elie Mystal makes a point worth remembering:
Now, look, I would not try this at home. It’s hard to argue about your free speech rights while a cop shoves a Taser down your throat while he’s “searching” for cocaine in your anus. The only thing worth saying to NYPD is “Don’t shoot.” All other disagreements can be worked out in a well-lit court of law.
The fact that you have a right to describe a police officer’s facial features in colorfully descriptive terms doesn’t make it wise to do so. Just as the cop will strictly adhere to the First Rule of Policing, the rest of us would do well to consider that there is little benefit to provoking a cop to violate his oath in ways that will inflict great pain on us.
But that’s your right, should you choose to avail yourself of it. In America, not only do we have the right to be an asshole, but the right to tell a cop that he’s one too. No matter what they think of such language in Nebraska.