First Amendment Protects Crude Protest of Police Action

10 Pages Posted: 9 May 2014

See all articles by Martin A. Schwartz

Martin A. Schwartz

Touro College - Jacob D. Fuchsberg Law Center

Date Written: 2001


In 2000, a New York City police officer observed Carl Washington flailing his arms and raising his hands at the officer while shouting crude and offensive language at the officer. The officer arrested Washington for disorderly conduct and resisting arrest. In a decision rendered by Judge Carol Edmead, the New York City Criminal Court dismissed the charges, finding that Washington's conduct did not constitute disorderly conduct, and without probable cause to arrest Washington for disorderly conduct, he could not be convicted of resisting arrest. The decision provoked a wide range of reactions. Many police officers were angry with the ruling. New York City’s then-Mayor Rudolph Giuliani denounced the ruling. But Norman Siegel, then-Executive Director of the New York Civil Liberties Union, claimed that the mayor's analysis was not legally sound.

Who drew the correct legal conclusion, the mayor or Mr. Siegel? An impressive body of U.S. Supreme Court and lower court decisional law demonstrates that Mr. Siegel got it right, and that it was Mayor Giuliani who deserved the failing grade in freedom of speech. Clearly, private citizens should not direct profanities at the police, and the police should not direct profanities at private citizens. But individuals sometimes use poor judgment or simply slip up in their choice of words, and when they do, it should not result in arrest, prosecution, and conviction. In an open society, the individual's choice of crude language to protest police action should not be criminalized. The author analyzes the decision of the Court in the Washington case and the body of case law in which the ability to crudely speak to police officers and city government officials has been determined to be protected speech under the First Amendment.

Keywords: First Amendment, freedom of speech, police action, government official action, Carl Washington, resisting arrest, disorderly conduct, crude language, obscene language, profanity

Suggested Citation

Schwartz, Martin A., First Amendment Protects Crude Protest of Police Action (2001). 23 Comm. & L. 51 (2001), Touro Law Center Legal Studies Research Paper, Available at SSRN:

Martin A. Schwartz (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States

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