Using #!&%* In Texas Could Be Costly
By KENNETH DEAN
The Internet recently has been abuzz with conversations about the residents of Middleborough, Mass., voting to fine those spewing profane and offensive language.
While some agree with the new ordinance, others say the new law infringes upon their First Amendment right to free speech.
Tyler attorney Ron Stutes said there are balancing tests to determine whether a person's words are offensive enough to rise to a possible fine by police.
"Generally, this falls into the famous exception to free speech that says you can't shout fire in a crowded theater," he said.
Tyler police spokesman Don Martin said in Texas, a person can be cited for offensive language under Texas Penal Code 42:01, which defines disorderly conduct.
"Someone has to be offended, like if a person was cursing in a park around families with small children," Martin said. "If someone calls us and we hear the person cursing, we can cite them for disorderly conduct. We can't cite them if they are cursing us unless there are people around who are offended by the person's language or gestures."
The penal code defines disorderly conduct, in part, as using abusive, indecent, profane or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of peace.
The code continues with obscene gestures, stating: makes an offensive gesture or display in a public place and that gesture or display tends to incite an immediate breach of peace.
Stutes said a person's language or actions cannot incite others to commit a crime or cause a breach in peace.
"In the U.S., we are entitled to say things that may be offensive, but do not encourage others to commit a crime or doesn't cause a disruption," he said.
Stutes explained that a demonstration could be offensive to some because of the message, but if it did not cause a disruption or encourage crime, then it would just be deemed that the message itself was offensive.
Martin said in the case of loud music that is offensive in nature, the person could be cited under the same penal code that allows for noises more than 85 decibels to considered offensive.
However, Martin said he did not know whether the music's language could be the reason someone could be cited.
Stutes said music and writing such as postings on Facebook and other social sites are much harder for a prosecutor to prove under the penal code.
"Those cases are a lot harder for a prosecutor to prove, but they can be prosecuted," he said.
Earlier this month, residents in Middleborough, a town of about 20,000, voted to create fines for those swearing in public, according to an Associated Press story.
They voted 183-50 to approve a police chief's plan to impose a $20 fine on public profanity.
Officials said the plan was to crack down on loud, profanity-laden language teens and other young people use in the downtown area and public parks.
Matthew Segal, legal director for the American Civil Liberties Union of Massachusetts, said the U.S. Supreme Court has ruled that the government cannot prohibit public speech just because it contains profanity.
Under the ordinance, police have discretion over whether to ticket someone whether they believe the cursing ban has been violated.