F*ck I'm a Felon!

Today while online, I discovered an interesting news article concerning profanity in South Carolina. Senator Robert Ford (D) of South Carolina, introduced a bill to outlaw profanity and lewd language in public, as well as making it illegal to disseminate to minors. Here are a few excerpts from the proposed bill

"Section 16-15-370. (A) It is unlawful for a person in a public forum or place of public accommodation willfully and knowingly to publish orally or in writing, exhibit, or otherwise make available material containing words, language, or actions or profance, vulgar, lewd, lascivious, or indecent nature."

"Section 16-15-439. (A) It is unlawful for a person to disseminate previous profanity next to a minor if he willfully and knowingly publishes orally or in writing, exhibits, or otherwise makes available material containing words, language, or actions of profane, vulgar, lewd, lascivious, or indecent nature."

It's interesting to note that this bill makes these crimes a FELONY, which can land you in jail for up to five years with a maximum fine of $5000. A felony, as defined from the dictionary at law.com, is defined as:

1. A crime sufficiently serious to be punishable by death or a term in a state or federal prison, as distinguished from a misdemeanor which is only punishable by confinement to county or local jail/or a fine.
AND
2. A crime carrying a minimum term of one year or more in state prison, since a year or less can be served in county jail.


So is swearing in public worth being labeled a felon for the rest of your life? First, we have to look at whether this law is even legal and in line with the first amendment. To be honest, my first reaction, as well as many of yours, will presumably be "NO!" To begin with, as discussed in Cohen v California, there are three kinds of speech that are not protected:

1. Appealing to the prurient interest: "a shameful or morbid interest in nudity, sex, or excretion."
2. Fighting words directed at a particular person
3. Thrust upon an unwilling audience, especially in the private realm.

Profanity is not in that list. In fact, in Harlan's opinion, he makes it clear that when it came to the public sphere, the burden was on the receiver to deal with the speech, presumably by "averting their gaze," either literally or figuratively. This is a very libertarian approach. So far, it seems that profanity should be protected in public.

But not so fast. The first amendment is not absolute as we know: you can't always just say whatever you want, whenever, and to whomever. There are limits. Should profanity in public or in front of a minor be one of those limits is the question. In Chaplinsky v New Hampshire, (I couldn't find it on lexis-nexis, but the link is to the opinion) the court made it clear that even if some did find a benefit to vulgar or profane statements, it was "clearly outweighed by the social interest in order and morality." So, as a country, do we have a moral obligation to not curse in front of our children? Even in the Cohen opinion there are doubts and confusions. As the article "A look back at Cohen v California" in the UCLA Law Review states:

"Cohen v California has settled the proposition that a criminal statute is unconstitutional if it punishes all public use of profanity without reference to details such as the nature of the location and audience. The opinion, however, left much to be decided about government controls on the use of profanity based on considerations of time, place, and manner. To what extent can profanity be punished because of the nature of the audience, the nature of the occasion on which it is uttered or displayed, or the manner of its utterance or display? Part of the difficulty, of course, stems from the nearly infinite number of imaginable factual situations. The ambiguity of the Harlan opinion adds to these difficulties."

So basically, the South Carolinian government has decided to control the "time, place, and manner" of profanity by completely banning it in public and in front of a minor. However, I feel like they are taking their power too far. I believe this bill seems to fall under the category of punishing all public use of profanity, which we've seen is illegal as stated in Cohen. The concept of protecting minors, especially very young children, from vulgar language is applaudable, but the bill is much too broad. Under this law, many artistic outlets would be smothered. Here are some examples, the first three being taken from a blog I found that also speaks of this bill:

- Giving or lending a book or movie to a minor with profanity in it.
- Not letting a minor read the King James Version Bible, as it contains the excretory word "piss."
- Not being able to swear in front of your own child, regardless of age. (They could be 16, and you're still a felon!)
- Minors could not watch movies with swear words in it, or check out books from the library with profanity in them.
- Letting your child listen to music with swear words, such as "shit" in them would make you a felon.
- Teens could not swear in school without being a felon. (would any teen NOT be a felon?)
- What about the internet? Is that not public? How do you stop minors from reading profanity online wihout extreme content regulation?

I believe this law is too vague. The government should not interfere with the morals and values we teach our children. Who decides what profanities are ok or not anyways? 50 year ago, hardly anyone said "fuck." Now it is extremely prevalent. Times change. What if parents feel ok letting their child hear or even say "shit" or "damn?" That should be a parental decision. It is not up to the government to decide what words are appropriate or morale for one's own child. Besides, speech in public would become "fit for children" (literally!) and I believe that the burden is on the receiver. If you don't want your child watching an R rated movie at 16 years old, then that's your perrogative. But the government shouldn't be able to FORBID a parent from letting them, as a parent knows best if their child is mature enough. The government needs to leave parenting to the parents...

FUN FACT! (Taken from the Volokh blog I found!)
"Two 16 year olds can be sexually involved in South Carolina (as can an adult and a 16 year old), but under this new law they'd be felons if they talked lewdly to each other." (Section 16-15-140 of the bill)

Wow, talk about hypocrisy!