THE RESIDENTS of Middleborough, Mass., have had enough. In a state with a storied history of Puritan-inspired prohibitions, they voted 183-50 in a town meeting last Monday to approve a proposal that would, among other things, impose a $20 fine on public profanity, First Amendment be damned.
In a town of roughly 20,000 people that the Associated Press described as best known for its cranberry bogs, profanity was just one of several practices addressed in the recently passed bylaw. The idea was to decriminalize certain behaviors prohibited in existing legislation that a cumbersome legal process often discouraged officers from enforcing. Other behaviors officers can now ticket include public marijuana use, public drinking and dumping snow on roadways. By treating them in the same vein as, say, traffic violations, the idea is that officers would actually be more inclined to deal with these issues when they see them.
Intentions aside, this proposal toes an uncomfortable line, as do most attempts to restrict speech — of any kind — in public. Even if the goal is to foster respect among residents, it’s not the best idea to let officers start ticketing vulgar language they hear in public spaces like parks or downtown. In fact, it’s not even clear where the line is and just what, exactly, the officers would be ticketing. As a local sergeant recently told the Boston Globe: “I think we all know, in our minds, what is inappropriate.” Do we? And is that really something that’s best for police to decide?
It’s easy to sympathize with Middleborough residents who don’t want to live in a perpetual rap song and encounter profanity everywhere they go. It’s also easy to see why the town’s Board of Selectmen would want to make their community a kinder, more genial place. Still, there are arguably bigger risks in imposing a law. If the Massachusetts attorney general approves it, the ordinance would encourage police to ticket speech that is, and likely will eventually be found to be, constitutionally protected. As it stands, the First Amendment protects profanity unless it’s coupled with true threats, fighting words or an incitement to imminent lawless action.
If not, as former Supreme Court Justice John Marshall Harlan II famously wrote in the court’s Cohen v. California opinion: “One man’s vulgarity is another man’s lyric.” “Another man’s lyric” shouldn’t have to cost him $20.