The year was 1971. Paul Cohen wore a jacket in a California courthouse that bore the words “Fuck the draft.” Writing for the majority, Justice John Marshall Harlan wrote that the “four letter expletive,” while provocative, was protected speech.

One man’s vulgarity is another’s lyric.

Apparently, this message failed to make its way to Punta Gorda, Florida, where Police Officer David Joseph Lipker arrested Andrew Sheets, appearing pro se, for standing on the sidewalk with two flags, one stating “Fuck Trump” and the other stating “Fuck Biden.” Lipker moved for dismissal based on qualified immunity, that the officer relied on the local ordinance against disturbing the peace. Middle District of Florida Judge Kyle Dudeck denied the motion.

This case is about words—specifically, a four-letter expletive that has vexed legal authorities and amused teenagers for generations. Plaintiff Andrew Sheets, proceeding pro se, alleges that Officer David Joseph Lipker violated his First Amendment rights by citing him for displaying signs bearing the word “Fuck” in a public place. Defendants now move to dismiss, arguing that the complaint is a shotgun pleading, that Officer Lipker is entitled to qualified immunity, and that the challenge to the underlying ordinance is moot.

We construe pro se pleadings liberally. But even without that generous standard, the constitutional principles at stake here are not new. Over fifty years ago, the Supreme Court made clear that the government cannot criminalize the simple public display of this particular four-letter word. See Cohen v. California, 403 U.S. 15 (1971). Because that right was clearly established long before Officer Lipker wrote his ticket, the motion to dismiss the First Amendment claims is DENIED.

Cops don’t like people saying bad words, especially in public and particularly around them. This is but one of the litany of constitutionally protected rights that seem to pop up regularly in interaction between police and the public. It doesn’t seem to matter that the issue is decided and whatever annoys the police officer has been held to be protected, whether four-letter expletives, finger gestures, or taking video of publicly visible conduct. And then there’s flag burning, held to be protected since 1989 when Texas v. Johnson was decided, and yet the object of a Trump Executive Order to the contrary.

When it comes to the word “fuck,” there are many who are offended, whether personally or on behalf of “the children” who, they believe, should not be exposed to such language. Frankly, I agree that the word is troubling and children are better off without seeing the word that has “amused teenagers for generations.” There is plenty of time for children to become familiar with the word, as they no doubt will.

But that doesn’t mean the person publicly using the word, whether on a jacket, flag or speech to a cop, doesn’t have a right to do so. And if there is a right to do so, any negative consequences, whether being threatened by a cop or arrested, chills, at best, and infringes, at worst, on the constitutional right of free speech.

But then, this matter dealt with a local ordinance and local cop. Had the arresting officer been a federal agent, the eradication of Bivens liability would have precluded suit and resulted in dismissal of Sheets’ § 1983 action. David French raises this issue in his New York Times column.

But the statute does not apply to federal officials. They enjoy extraordinary immunity from liability.

This must change, and it can change. In November, Senator Sheldon Whitehouse and Representatives Hank Johnson and Jamie Raskin reintroduced a bill called the Bivens Act. It’s remarkably simple. It would amend Section 1983 by stating that officials “of the United States” can be held liable on the same basis as officials of any state.

That’s it. That’s the bill. And it’s worth shutting down the Department of Homeland Security to get it passed.

French notes that while Trump may possess the authority to pardon feds from criminal culpability for their actions, the pardon power has no applicability to civil actions for violations of constitutional rights. His point is that the segregation of DHS funding provides the Democrats with the opportunity to force the enactment of the Bivens Act to expand § 1983 liability to federal actors. It’s a good bill and the right idea, applicable both to federal agents serving the Trump administration as well as feds when the Dems take over again.

Is it likely that the act will be passed so that a fed doing what Lipker did to Sheets would face liability? Probably not, even though the right has been clear for more than 50 years. But should the Bivens Act be passed? Fuck yeah.

H/T Eugene Volokh