Sunday, February 04, 2007

Speaking of the damn First Amendment

State-sponsored Yoga may or may not violate the First Amendment, but arresting somebody for uttering the phrase "God damn lawsuit" at a town board meeting is protected by the First Amendment. So ruled a panel of the 6th Circuit on Friday, holding that the police officer lacked qualified immunity for arresting a citizen who uttered that phrase. To me the most astounding feature of the case is the quotation of Michigan Compiled Laws § 750.103, which provides in part:

CURSING AND SWEARING—Any person who has arrived at the age of discretion, who shall profanely curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost, shall be guilty of a misdemeanor.

The arresting officer had relied upon this provision (and others) for the proposition that he did not violate clearly established rights of the speaker, but the 6th Circuit said that any reasonable officer would have known, in light of Cohen v. California (the 1971 Supreme Court case voiding a criminal conviction for wearing a jacket with the phrase "Fuck the draft" on it), that the simple utterance of a profanity, without any intimation of violence or obscenity as defined in the Court's cases, could not be the basis for an arrest. That's a perfectly good basis for finding no qualified immunity, but it's unfortunate that the Sixth Circuit did not also take the opportunity to point out that a state law making it a crime to "curse or damn or swear by the name of God, Jesus Christ or the Holy Ghost" obviously violates the Establishment Clause.