The Sun News ran an article over the weekend about how the public disorderly conduct law in Myrtle Beach, SC says that everyone must be nice to each other or go to jail:

You may want to think twice if you’re about to shout a four-letter word at someone while walking down Myrtle Beach’s Ocean Boulevard.

Those who get caught publicly using profanity in the City of Myrtle Beach could be taken to jail or issued a citation.

The lewd, obscene and profane language ordinance — a misdemeanor — falls under the city’s disorderly conduct offense.

If the author had bothered to ask an attorney before writing the story, they might have realized that:

1. The ordinance as it is written is unconstitutional; and
2. The city is subject to civil liability if officers arrest people simply for using profanity.

Of course, it’s possible that they did ask, but didn’t believe the answer, since, as the author says, “The offense plainly states a person should not make, utter or direct any lewd, obscene or profane words toward another person.”

Many a police officer who was not trained in First Amendment law (or was not paying attention in class) has said the same thing, and then likely were scratching their heads wondering why they became a defendant in a federal civil rights lawsuit…

Can I Go to Jail for Using Profanity in SC?

Various cities have enacted their own versions of the South Carolina state-level offense of public disorderly conduct. Many of them violate the First Amendment and are partially unenforceable, depending on the conduct and whether it rose to the level of “fighting words.”

Can I Go to Jail for Using Profanity in Myrtle Beach?

Myrtle Beach does have a municipal ordinance that covers “public disorderly conduct” and “breach of peace,” found at code section 14-61.

To their credit, it was clearly drafted with the First Amendment’s restrictions in mind:

(b) It shall be unlawful for any person within the city limits to intentionally engage in any act or conduct inciting public disorder or a breach of the peace in light of the surrounding circumstances of time, place or nearness of other persons, including but not limited to acts or conduct characterized:

(1) By making, uttering or directing toward another person any lewd, obscene or profane or libelous expletive or epithets or “fighting” words, which as a matter of common knowledge, when addressed to the ordinary citizen are inherently likely to provoke violent reactions, including but not limited to calls, threats and invitations to immediately engage in physical violence, fisticuffs, duel or personal combat;…

The section quoted above that deals with profane language acknowledges the “fighting words exception” to the First Amendment, although it fails with what might just be poor grammar:

“By making, uttering or directing toward another person any lewd, obscene or profane or libelous expletive or epithets or “fighting” words…”

That unfortunate use of the word “or” before fighting words might lead some officers (or reporters) to believe that it is unlawful to make, utter, or direct toward another person any: 1) lewd expletive; 2) obscene expletive; 3) libelous expletive; or 4) fighting words, implying that you can be arrested for any of the above.

The ordinance, however, complies with US Supreme Court and SC Supreme Court case law defining First Amendment protections only if it is read as: “it is unlawful to make, utter, or direct toward another person any lewd, obscene, or libelous expletive if they are fighting words.”

Charleston, SC’s Public Disorderly Conduct Ordinance

Charleston, SC’s municipal code section 21-109 appears to have been carefully drafted to not prohibit any conduct that would be protected under the First Amendment – most items that are prohibited conduct include a reference to violence or an illegal action’s likelihood of inciting violence, although any statute that makes it a crime to act in a loud or boisterous manner is also unconstitutional (see State v. Perkins, below).

SC’s Public Disorderly Conduct Law

South Carolina’s state public disorderly conduct statute also contains language that is unconstitutional and that could subject an officer to a lawsuit:

…(b) use obscene or profane language on any highway or at any public place or gathering or in hearing distance of any schoolhouse or church…

Simply using obscene or profane language, even if it is directed at another person, especially if it is directed at law enforcement or other government officials, is protected under the First Amendment.

Why are Public Disorderly Conduct Statutes Unconstitutional?

Public disorderly conduct, breach of peace, and interference with officer laws all have the potential to violate the First Amendment unless their effect is limited to “fighting words where there is a likelihood that the utterance would provoke an immediate violent response.”

Even when the language is directed at a police officer, “the State may not punish a person for voicing an objection to a police officer where no “fighting words” are used.” Federal and South Carolina courts have repeatedly held this in cases dating back to 1942.

Any other interpretation, according to the US Supreme Court in Houston v. Hill, “impermissibly provides police with unfettered discretion to arrest individuals for words or conduct that are simply annoying or offensive.”

US Supreme Court Cases on “Fighting Words”

There are hundreds of cases from the US Supreme Court, the federal circuit courts of appeal, and state supreme courts on this issue – it’s not an open question. Some of the US Supreme Court cases include:

• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (New Hampshire breach of peace statute was upheld under the Fourteenth Amendment, because State appellate opinions limited the statute’s effect to conduct, the direct tendency of which was to provoke the person against whom it was directed to acts of violence);
• Gooding v. Wilson, 405 U.S. 518 (1972) (Georgia breach of peace statute was on its face unconstitutionally overbroad because Georgia courts had not limited its effect to “fighting words” where there is a likelihood that the utterance would provoke an immediate violent response);
• Norwell v. Cincinnati, 414 U.S. 14 (1973) (the State may not punish a person for voicing an objection to a police officer where no “fighting words” are used);
• Lewis v. New Orleans, 415 U.S. 130 (1974) (New Orleans ordinance stating it is a breach of peace to curse at police while they are in performance of their duties was unconstitutional on its face, because it was not limited to fighting words; a properly trained 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); and
• Houston v. Hill, 482 U.S. 451 (1987) (ordinance making it unlawful to interrupt a police officer in the performance of their duties was facially unconstitutional and overbroad – the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers).

SC Appellate Cases on “Fighting Words”

South Carolina courts have followed the pronouncements of the US Supreme Court when deciding First Amendment disorderly conduct or breach of peace cases. For example:

• State v. Perkins, 306 S.C. 353 (1991) (South Carolina’s public disorderly conduct statute that makes it illegal to conduct oneself “in a disorderly or boisterous manner” was unconstitutionally overbroad when applied to Defendants who became upset and raised their voices at the Sheriff’s Department);
• City of Columbia v. Brown, 316 S.C. 432 (Ct.App.1995) (racial slurs are fighting words and not protected by the First Amendment);
• State v. Pittman, 342 S.C. 545 (Ct.App.2000) (a pedestrian or a passenger in a vehicle can be charged with disorderly conduct if they are grossly intoxicated, but if Pittman’s only disorderly behavior had been to use profanity, or to complain about Officer Martin removing him from the vehicle, he could not be arrested for public disorderly conduct);
• Landrum v. Sarratt, 352 S.C. 139 (Ct.App.2002) (calling someone’s mother a bi***, calling someone’s mothers names, and using the F words are fighting words);
• In Re Jeremiah W., 361 S.C. 620 (2004) (saying F you to a police officer and disobeying unlawful commands was not fighting words and was protected conduct);
• State v. Bailey, 368 S.C. 39 (Ct.App.2006) (extremely argumentative, loud, and boisterous conduct in a store in full view of the public was protected conduct and not fighting words);

Can I Sue if I’m Arrested for Profanity?

In Houston v. Hill, the US Supreme Court also authorized civil suits for damages against police officers or their departments when a person is arrested pursuant to an unconstitutional disorderly conduct statute.

If you are arrested and charged with public disorderly conduct, breach of peace, or interfering with a police officer based solely on verbal conduct, even if it is profanity, your First Amendment right to freedom of speech has been violated.

First, you need to get the criminal charges dismissed or you need to be acquitted at trial. During that process, we will preserve any evidence that you may use in a civil suit. Once your criminal charges have been resolved, we can advise you as to whether you have a civil claim based on the evidence and relevant case law.

Criminal Defense and Civil Rights Lawyer in Charleston, SC

“The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state.”

–  Houston v. Hill, 482 U.S. 451 (1987).

Call Charleston criminal defense attorney Grant B. Smaldone now at (843) 808-2100 or email us through our website to speak with a SC First Amendment and disorderly conduct defense lawyer today.