On Sept. 12, Danielle Wolf, a wife and mother of two, will appear in court to defend herself against charges of disorderly conduct after saying the F-word in front of her husband and two daughters in a North Augusta, S.C., Kroger grocery store in late July. She was angry because the frozen pizza was squishing the bread. A witness, Michelle Smith, took offense and was so concerned for the children that she reported the incident to the police, who promptly arrested the puzzled mom. At this point, it appears the prosecutor is going to pursue the case, which is scheduled to go before a judge next month.
Wolf is being prosecuted for disorderly conduct. The applicable North Augusta City Ordinance defines disorderly conduct as to "utter, while in a state of anger, in the presence of another, any bawdy, lewd, or obscene words or epithets." It appears that Wolf may intend to plead guilty to this charge and enter an agreement with the court, since she has already apologized to Smith, the witness, and said that she would not use such language again. The judge, in his or her discretion, could certainly determine that the plea and apology are enough and let the case go with that apology. However, Wolf could also fight this charge - and likely win.
The U.S. Supreme Court has never interpreted the First Amendment's guarantee of freedom of speech to include obscenity. However, who decides what is obscene? As Justice John Marshall Harlan wrote 40 years ago in the landmark Supreme Court case of Cohen v California, "one man's vulgarity is another's lyric." In deciding whether the use of curse words is protected by the First Amendment, context of the speech is important. If it is uttered to start a fight or can be defined as sexual harassment, the speech is likely not protected. However, recent decisions may give Wolf a very strong position next month.
In 2011, the Chicago suburb of Park Ridge eliminated a law that made it illegal "to use profanity in any street, alley or public place of the City" because it was concerned about the freedom-of-speech implications of that law. It was right to be concerned. In 1999, a man in Michigan was arrested for swearing when he fell out of a canoe. Rather than pay a fine, he hired the ACLU and fought the case. He lost at the trial level but appealed the case, and in 2002, a Michigan appeals court struck down the applicable 105-year-old law. While the language of the law was different than the one Wolf violated here, the court's reasoning was important. In that case, Justice Murphy wrote, "Allowing a prosecution when one utters 'insulting' language could possibly subject a vast percentage of the populace to a misdemeanor conviction." (People v Boomer, 655 N.W.2d 255 [Mich. App. 2002]).
The same could be argued here. Wolf swore because she was mad about squished bread. How many swear when they stub their toe, their team loses a game, or they forgot their bank card at home? Just a few years ago, Vice President Joe Biden used the same word on live television during the signing of the Affordable Care Act into law. The courts need to be careful not to prosecute behavior that has, for better or worse, become normal less we all face the possibility of arrest. That would be worth swearing about.
Heather Hansen is a partner in the O'Brien and Ryan law firm who has been named one of the 50 top female lawyers in the state by Pennsylvania Super Lawyers. Heatheris also anational television and radio legal analyst and journalist who has appeared extensively on CBS News, Fox News, Fox Business Channel, Fox.com, CNN, HLN and Sirius XM radio. Her writing has appeared in Law360 and she has co-authored two chapters in medical texts regarding medical malpractice litigation. Follow her on Twitter at @imheatherhansen.
