Cursing at a Cop Is Protected Free Speech

It's usually not a good idea to curse at police, but it is still a fundamental right.

The U.S. Eighth Circuit Court of Appeals said so in a case from Arkansas. As a cop was citing one driver, another motorist passed by and gave the officer an earful. That led to an arrest for disorderly conduct in Thurairajah v. City of Fort Smith.

After an unpleasant tour of the local slammer, the motorist was out and in no mood to let it go. He fought the law, and the Constitution won.

First and Fourth Amendments

The case started in 2015 when Arkansas State Trooper Lagarian Cross was performing a traffic stop on a Fort Smith highway. He heard somebody yell, "f*ck you," and it was on.

Cross chased down Eric Roshaun Thurairajah and arrested him for disorderly conduct based on "unreasonable and excessive noise." Thurairajah spent eight hours barefoot in a cell with a toilet that had overflowed. That's what he said in his civil rights lawsuit, anyway.

The defendants asked the trial judge to throw out the case based on qualified immunity, but the judge declined. The Eighth Circuit didn't buy it either. The appeals panel said the plaintiff had a First Amendment right to curse, and a Fourth Amendment right to be free from an unreasonable stop.

"Thurairajah's conduct may have been offensive, but it was not an unreasonable or excessive noise," the appeals panel said. "Trooper Cross lacked even arguable probable cause for an arrest and thus violated Thurairajah's Fourth Amendment right to be free from unreasonable seizure."

Qualified Immunity

Police routinely claim qualified immunity for their actions, but courts will overrule them on occasion. In a recent Michigan case, for example, the Sixth Circuit denied police immunity for conducting a strip-search without probable cause.

In that case, a white policeman arrested a black man for driving without a license, then strip-searched him to look for drugs. Officer Daniel Mack probed the man's body cavities and found nothing illegal.

Meanwhile, Georgia police arrested a man last month after he dropped an f-bomb while walking on a sidewalk. "Don't cuss in public," Officer Phillip Wood says in a bodycam video.

The officer acted appropriately, police authorities said. The courts, of course, will have the last word. Probably not the f-word, however.

Related Resources:

• Helen, Georgia Police Defend Arresting F-bomb Dropping Man (11Alive)
• Eighth Circuit Strikes Sign Ordinance in Big Case for a Small Town (FindLaw's U.S. Eighth Circuit Blog)
• Appeals Court Lets Sioux City Bully Dog Breed (FindLaw's U.S. Eighth Circuit Blog)