KNOW YOUR RIGHTS:
THE RIGHT TO CUSS?
by Doug Bonney
A few years back, I read and heard about a Michigan case in which a man cussed a blue streak after his canoe capsized. Because women and children were present on the water at that time of the man's profane tirade, the prosecutor charged the man with violating a hundred year old Michigan state criminal law against cussing in front of women and children. Because it is time to have a little fun, I thought I would write about whether people have a right to cuss.
First, let's talk about cussing at work. As I have mentioned before in these pieces, if you do not have a union or a definite employment contract, you are an employee at will and can be fired for any reason or no reason at all. Therefore, employees at will can be fired for cussing at work (and probably for cussing away from work), and there would be nothing that could be done about it.
Unionized employees are in a better position because almost all collective bargaining agreements include provisions that require just cause for discharge or discipline. Many arbitrators have held that the mere use of profanity or vulgar language is not enough to justify disciplining an employee. This is particularly true where the culture of the plant or workplace has tolerated cussing for a long time. The key factor is usually whether the language used and the employee's behavior show an abusive intent. Abusive behavior is grounds for discipline, especially when it is directed towards management or customers. In addition, sexual harassment lawsuits have caused many employers to try to crackdown on sexually charged profanity. These cases may raise First Amendment issues, but arbitrators will usually uphold the discipline or discharge of an employee who used sexually charged profanity to demean or abuse another employee, supervisor, or customer.
Another issue that arises in unionized workplaces concerns the use of profanity in connection with a labor dispute, such as during a grievance meeting or on buttons or picket signs. In a 1966 case, the Supreme Court recognized that exaggerated language is commonplace in labor disputes. Thus, the Court applied principles similar to those applied in First Amendment cases. The NLRB and arbitrators have confronted many, many cases involving offensive, vulgar, profane, or otherwise spirited language. Generally, the cases have held that such language is protected unless it is so flagrant, violent, or extreme that it renders the employee unfit for further service with the employer. Thus, an arbitrator upheld a grievance challenging a disciplinary suspension imposed on a union president who called a warehouse manager an "fucking liar" during a grievance meeting. Similarly, an arbitrator recently held that an employee could not be disciplined for wearing a button that said "When will this shift end?" Even though the word "shift" could be misread as a scatological reference, the arbitrator held the button was protected activity under the National Labor Relations Act. But this doctrine is not unlimited. A couple of years ago the federal appellate court in St. Louis held that a profane picket sign referring to a particular scab by name and asking "Who is [the scab] sucking today?" was not protected so that an employee who carried the sign for a mere five minutes was properly discharged.
Turning away from the workplace, the cussing canoer case raises the question of whether the government can criminalize public profanity. Based on a series of cases decided by the Supreme Court in the early 1970s, it is clear that the use of profanity is protected speech under the First Amendment, at least when the profanity is used as part of the political message. The most famous of these cases was Cohen vs. California, in which a man was prosecuted for walking through the courthouse wearing a jacket that said "Fuck the Draft," referring to the military draft during the war in Vietnam. The Court held that the profanity used in that case was protected speech. In the other cases, the Court left open the possibility that the government could properly criminalize offensive profanity not connected with a particular message, but the Court overturned the specific convictions for generalized profanity because the government had not sustained its heavy burden of writing a law that would not apply to and chill protected speech. Such legal drafting is so difficult that, in practice, it is probably impossible to criminalize plain profanity without restricting protected speech that contains profanity. Perhaps the case of the cussing canoer will go all the way to the Supreme Court, and we will get an answer to this unusual question.
Finally, one area where the Supreme Court has upheld the regulation of profanity is on radio or television. The Court held in the Pacifica Radio case that the FCC could prohibit the use of certain words on the airwaves because impressionable children might be listening and would be a captive audience. Of course, George Carlin's lampoon of the FCC's regulation in his classic piece "Seven Dirty Words You Can't Say on Television" was behind the Supreme Court case. On the internet, we are safer from the censorious gaze of the government. In a 1997 case, the Supreme Court struck down part of the Communications Decency Act, a federal law that prohibited the transmission of "obscene or indecent" messages in cyberspace. The Court held that that speech that is merely indecent but not obscene is protected by the First Amendment and cannot be banned by the government. Thus, here on the internet I can include the actual cuss words whereas, when I read this piece on the radio, I had to replace the cuss words with the Watergate term "expletive deleted."
This has been Doug Bonney of the Bonney Law Office helping you to know your rights!