Public Disorderly Conduct and the First Amendment

The recent NFL protests have sparked conversations (and bitter arguments) nationwide about when and where it is appropriate for people to exercise their First Amendment rights.

Without reference to the subject matter of the protest – the social inequality in our country that includes abuse of minorities at the hands of law enforcement – most of the arguments have centered around the NFL player’s choice of venue for their protest and whether it is offensive to kneel as the National Anthem plays.

I love our country. I respect the flag. I also think that many people do not understand and appreciate what the First Amendment is and why we have it.

What Does the First Amendment Protect?

Among other things, it protects our right to freedom of speech. That means that we are protected from government action (not private action) when we express ourselves through speech or other actions. The very heart of the speech that the First Amendment was designed to protect is political speech and specifically speech that is critical of our government.

The First Amendment probably does not protect NFL players from action that could be taken against them by the league or the teams’ owners. But, it absolutely protects them from government actors such as the President of the United States.

Reasonable restrictions can be placed on the time and place that people protest (although I am pretty sure that this would not allow the government to prohibit NFL players from protesting at football games). There is also an exception to the First Amendment called the “fighting words exception” that comes into play when police attempt to arrest a person for offenses like public disorderly conduct, breach of peace, or interfering with police.

Disorderly Conduct, Breach of Peace, and the First Amendment

Any person who is speaking or engaging in other forms of expression cannot be arrested and charged with a crime based on their speech. This is especially true when the speech is critical of law enforcement, public officials, or government policies.

For example, you can walk up to a police officer and say “F*** You,” and that speech is protected under the First Amendment. Complaining about an officer’s actions is protected under the First Amendment. Most statutes that criminalize profanity are unconstitutional and violate the First Amendment, except as applied to “fighting words.”

What are fighting words?

There is a line of cases from the US Supreme Court and the SC Supreme Court that defines fighting words and provides a number of examples of what would qualify and would not qualify.

In general, fighting words means language that would immediately incite a person to violence. They are words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Racial slurs are fighting words when directed at a person. There is at least one SC case that says insulting a person’s mother is fighting words. Cursing or profanity, criticism of

On the other hand, cursing or profanity, criticism of police, and even loud, boisterous conduct is protected by the First Amendment and is not generally considered to be fighting words.

Were You Charged with Breach of Peace or Disorderly Conduct in Myrtle Beach?

If you were arrested for cursing or being critical of a police officer, you may have been charged with what we like to call “contempt of cop.” Your conduct is protected under the First Amendment, and you may have a cause of action for wrongful arrest once your case has been dismissed or you are acquitted.

As the US Supreme Court stated, in the context of allowing a 1983 lawsuit against a police officer for violating a person’s First Amendment rights:

[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.

This is a free nation. It is not yet a police state. If you have been charged with disorderly conduct, breach of peace, or interfering with police in violation of your First Amendment rights, you need a Myrtle Beach criminal defense lawyer on your case as soon as possible. We will get your case dismissed or take it to trial, and we will preserve any evidence that you may need for a civil suit against the police.

Call me at (843) 492-5449 or fill out the online contact form to set up a free consultation to find out how we can help.

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