Updated on August 31, 2019
Texas Cops Continue Violating First Amendment in How They Enforce 42.01(a)(1)
I’m writing this after viewing this video by James Freeman.
This kind of stuff is why I’m in law school. In Texas, there is a statute still the books that makes it a “crime” to use “abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace” (Penal Code Section 42.01(a)(1)).
In Cohen v California (403 U.S. 15), the Supreme Court addressed a nearly identical California statute where a man was prosecuted for wearing a shirt that said “Fuck the Draft” and “Stop War.” The court held in that 1971 case that it
“cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.
“It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.”
And yet, in 1993, when the state of Texas restructured it’s penal code, it failed to remove or clarify this statute that had already been essentially nullified by common law.
While 42.01(a)(1) hasn’t been deemed unconstitutional as a whole, it has been determined via several cases to only apply to the narrowly constricted “fighting words” exception. In S v. Hazlewood, 2007 U.S. Dist. LEXIS 50983 the district court heard a case involving a dispute between a husband and wife in which the wife was telling cops to “fuck you” and calling them “motherfucker.” The cops arrested her for disorderly conduct. The state argued that because “bank employees and passersby were disrupted from their daily routines because of Mrs. Hazlewood’s behavior,” was was in violation of 42.01(a)(1). The court found differently under the “fighting words” requirement. Several court findings have limited the scope of this section to “fighting words.” See Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778; Jimmerson v. State, 561 S.W.2d 5; and Estes, 660 S.W.2d at 875. Hazelwood specifically found that the use of “fuck” does not invite the public (nor officers, who are held to a higher standard) to violence as required by the statute (though not specifically stated in the plain language).The language uttered must specifically do that.
Yet, the officer himself said this isn’t the case. He specifically said that, “when you’re displaying these signs and people are calling because that is offensive to them, that is a crime.” Actually no it’s not. The cases above make that perfectly clear. Offensive speech is specifically protected as shown in Cohen above unless it incites the public to violence. Obviously, this wasn’t the case here because merely called allegedly because they were offended.
In this video, the initial cop even makes a statement that “I’ve already heard you say a cussword [sic] once, so…” as if using profanity in the presence of a cop were also a crime. The police fall under a much higher standard than the public for what constitutes disorderly conduct and “fighting words.” They are expected to take a higher level of verbal abuse than the general public by the nature of their jobs. “The First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451, 461. The 5th Circuit endorsed Hill by highlighting that “[A] properly trained police officer may reasonably be expected to ‘exercise a higher degree of restraint’ than the average citizen, and thus be less likely to respond belligerently to ‘fighting words.'” Enlow v. Tishomingo County, 962 F.2d 501, 509 (5th Cir. 1992). See also Lewis v. City of New Orleans, 415 U.S. 130, 94 S. Ct. 970, 39 L. Ed. 2d 214 (1974), which quoted Hill affirming yet another case.
The problem we have in Texas is (1) a lack of training and (2) a lack of attention by the Texas legislature to incorporate Court ruling into a revised and unimplied statute. In the Estes case mentioned above, the court found that “[t]he generally accepted definition of breach of the peace, and the one used by the court in this case, includes the admonition to the jury that cactual or threatened violence is an essential element of a breach of the peace.'” Quoting Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685 (1948). The “fighting words” exception to the 1st Amendment was adopted in Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942). Then, in Woods v. State, 152 Tex. Crim. 338, 213 S.W.2d 685, 687 (1948) the court held that “actual or threatened violence is an essential element of a breach of the peace.” Using these cases, the Estes court didn’t completely invalidate 42.01(a)(1), but instead simply clarified that only “fighting words” and “actual or threatened violence” constituted a violation of the statute, not mere profanity or the existence of an offended person in public. The Hazelwood court applied these standards to speech against cops and added the element that cops are held to an even higher standard. So, the fact that Otto uttered a profanity in the presence of the cop is irrelevant.
Cops aren’t generally very intelligent about the law. They don’t concern themselves with precedents and what courts are doing until their higher powers drill it into their heads or the legislature changes the plain language of the law. They are not paid to understand the law; they’re paid to read it. They subscribe to the philosophy not of doing the right thing, but “you may beat the rap, but you won’t beat the ride.” They cannot stomach being offended, the law be damned. They will use their power to get you one way or the other.
The solution is simple here. The state needs to fix the disorderly conduct statute in many ways and also the failure to ID statute. The other solution is that CLEAT (Combined Law Enforcement Association of Texas), those utterly despicable excuses for humanity, needs to train law enforcement departments about the common law related to 42.01(a)(1).