The right to be vulgar

A case arising from Nassau County reminds us that the First Amendment prohibits the government from arresting people who use mindless vulgarities, so long as the foul language does not rise to the level of "fighting words" or create imminent danger of violence.

The case is People v. Louis, decided by the District Court of Nassau County on July 25. The defendant called the district attorney's office and directed his obscene tirade toward a lawyer there. The accusatory instrument prepared by the assistant district attorney states:

On or about and between February 22, 2010 and April 11, 2010, while employed at the Nassau County District Attorney's Office ... as an Assistant District Attorney, I received a series of telephone voice mail recordings from defendant, Nicolas Pierre–Louis․ In the voice mails, Nicolas Pierre–Louis yells, screams and uses profanity, stating in part, “I'm coming at you with fury,” and, “piece of shit faggot fucking cock sucking cock,” and “bitch, you will lose your fucking job,” and “I got all the juice enough to make sure that you're holding a can in the fucking street,” and “and I will keep calling until you arrest Jessy Pierre–Louis, so do your fucking job” and “when you lose your job bitch, don't say I didn't warn you,” and “I will rain hell on your office and make sure heads roll,” you racist bitch” and “you assholes” and “you motherfuckers.” Nicolas Pierre–Louis says many other profane and offensive comments left recorded on my office voice mail that are alarming and annoying. The repeated calls left by Nicolas Pierre–Louis caused me to fear for my safety and the safety of [another] Assistant District Attorney ... because of the screaming outbursts of rage and anger directed toward [the other ADA] ... and I [sic] and the content of what he was saying during his many calls.

This is pretty obscene, and you can understand why the Assistant District Attorney got worried. Probably more government employees than you think live in fear that someone from the public will follow through on threats like this. The question here is whether this phone message violates the Aggravated Harassment law in New York, which prohibits any telephonic or other electronic communication that is "likely to cause annoyance or alarm." This is tricky language. The Supreme Court has held that, under the First Amendment, vulgar or offensive speech cannot be restricted unless it presents "a clear and present danger" of imminent harm. The New York Court of Appeals has similarly held that

Speech is often “abusive”—even vulgar, derisive, and provocative—and yet it is still protected under the State and Federal constitutional guarantees of free expression unless it is much more than that. Casual conversation may well be “abusive” and intended to “annoy”; so, too, may be light-hearted banter or the earnest expression of personal opinion or emotion. But unless speech presents a clear and present danger of some serious substantive evil, it may neither be forbidden nor penalized.

More broadly, citing Supreme Court authority, the Nassau County court says, "A criminal prohibition on communicating in an alloying or alarming way is facially unconstitutional." Under these legal standards, Louis's telephone message is free speech, not aggravated harassment. They are not "fighting words" or a "true threat" of violence. The Court says, "In spite of the fact that the defendant uses a number of derisive terms in reference to the ADA, his statements seem confined to threats to have the ADA fired. Even the worst of the alleged statements, 'I'm coming at you with fury,' is too vague to be considered a true threat, but is more properly understood in context with the defendant's other statements." As applied to this case, the Aggravated Harassment law is unconstitutional.