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Constitutional Law • First Amendment - Free Speech
CONLAW#134
Legal Definition
Yes, profane and indecent speech is generally protected, except over the broadcast media and in schools (where the government can regulate more heavily).
Plain English Explanation
People have the right to be profane and indecent. For example: Fuck. See? You may not have liked reading that word, but neither you or the government can stop me from saying it in this app, or even in most situations. There are two areas where such language would not be protected. The first is broadcast media, like television and radio. Why? Because radio waves are transmitted through "public property" (the air) and can be received by anyone, including children. So the government basically says, "Yo, you can use the public air to transmit your speech, but you need to watch your mouth." It's like when you visit Grandma's house and have to watch your cursing. Similarly, language inside of schools may be limited in order to protect kids from profane or offensive messaging.
Hypothetical
Hypo 1: Bob is a high school student who gets frustrated with his math teacher and yells out "This class is fucking bullshit!" in the middle of a lesson. The principal suspends Bob for using profanity. Result: The school was within its rights to discipline Bob. Even though profanity is generally protected speech, schools are allowed to prohibit vulgar language in order to maintain an orderly learning environment. Bob's outburst was disruptive to the class and inappropriate for the setting.
Hypo 2: Sam is watching his favorite TV show one evening when one of the characters says "Oh shit, I can't believe that happened!" Later, the network is fined by the FCC for airing profane language. Result: Assuming this occurred before the FCC's "safe harbor" hours of 10pm to 6am, the fine is likely justified. The government has more power to regulate and punish profanity on broadcast television and radio, especially during hours when children may be watching, in order to uphold societal standards of decency.
Hypo 3: Bob is walking through a public park when he stubs his toe and loudly exclaims "Fuck, that hurt!" A nearby police officer tries to cite Bob for disorderly conduct for using profanity in public. Result: The officer is in the wrong here. Using profanity in public, by itself, is not a criminal offense. The First Amendment protects Bob's right to say "fuck" even if others around him are offended. Unless Bob is being extremely loud and disruptive, or engaging in additional misbehavior beyond the profanity, he cannot be punished simply for swearing in public.
Hypo 4: Sam rents out a community theater and puts on a play that contains quite a bit of profane language and sexual content. The city council tries to shut the production down, arguing it violates community standards of decency. Result: The city council's action is likely unconstitutional. Live theater does not receive the same level of government scrutiny and control as broadcast media. As long as Sam is not engaging in anything legally obscene, the profane language and adult content in his play is protected artistic expression. The government cannot censor the production simply because it offends some in the community.
Hypo 5: Bob and Sam have a private conversation in Sam's house, during which they liberally use profanity and tell raunchy jokes. Result: The government has no right to intervene here, as this is purely private speech occurring in a private home. Regardless of how profane or indecent the content of Bob and Sam's discussion may be, they have a First Amendment right to engage in it free from government sanction as long as it stays between the two of them.
Hypo 2: Sam is watching his favorite TV show one evening when one of the characters says "Oh shit, I can't believe that happened!" Later, the network is fined by the FCC for airing profane language. Result: Assuming this occurred before the FCC's "safe harbor" hours of 10pm to 6am, the fine is likely justified. The government has more power to regulate and punish profanity on broadcast television and radio, especially during hours when children may be watching, in order to uphold societal standards of decency.
Hypo 3: Bob is walking through a public park when he stubs his toe and loudly exclaims "Fuck, that hurt!" A nearby police officer tries to cite Bob for disorderly conduct for using profanity in public. Result: The officer is in the wrong here. Using profanity in public, by itself, is not a criminal offense. The First Amendment protects Bob's right to say "fuck" even if others around him are offended. Unless Bob is being extremely loud and disruptive, or engaging in additional misbehavior beyond the profanity, he cannot be punished simply for swearing in public.
Hypo 4: Sam rents out a community theater and puts on a play that contains quite a bit of profane language and sexual content. The city council tries to shut the production down, arguing it violates community standards of decency. Result: The city council's action is likely unconstitutional. Live theater does not receive the same level of government scrutiny and control as broadcast media. As long as Sam is not engaging in anything legally obscene, the profane language and adult content in his play is protected artistic expression. The government cannot censor the production simply because it offends some in the community.
Hypo 5: Bob and Sam have a private conversation in Sam's house, during which they liberally use profanity and tell raunchy jokes. Result: The government has no right to intervene here, as this is purely private speech occurring in a private home. Regardless of how profane or indecent the content of Bob and Sam's discussion may be, they have a First Amendment right to engage in it free from government sanction as long as it stays between the two of them.
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