Brookline Probably Won’t Be Fining You for Swearing Anytime Soon

Brookline caused a ruckus Thursday when the warrant to be considered at their upcoming Town Meeting included language that would fine people for swearing in public. There seems to be some confusion about what exactly is going on here.

In fact, Town Meeting members aren’t looking to ban public cursing. They are actually proposing other additions to an existing bylaw. And that existing bylaw happens to include an old fine on those who make “offensively coarse [course] utterance, gesture or display, or addresses abusive language to any person present.” In other words, Brookline isn’t looking to ban swearing in public so much as it is looking to edit another section of a law that already bans it.

Wait a just f#$#@* minute, you might be saying to yourself. Doesn’t that sort of bump up against our First Amendment right to free speech? Short answer: Yes, it probably does. In fact, the language is almost identical to a law passed in Middleborough last year that increased fines for violation of an existing bylaw banning “offensively coarse utterance, gesture or display.” Town bylaws are submitted for review by the state’s Attorney General, and here is what the Martha Coakley’s office had to say about Middleborough’s stunt in a letter to the Middleborough Town Clerk:

[Offensively coarse utterances] potentially include within their scope not only core political speech such as graphically-worded criticisms of public officials, but also offensive but nonthreatening insults, and even profane banter between friends. Under the “First Amendment overbreadth doctrine, a statute is facially invalid if it prohibits a substantial amount of protected speech,” where the “overbreadth [is] substantial, not only in an absolute sense, but also relative to the statute’s plainly legitimate sweep.” Williams, 553 U.S. at 292-93. We conclude that section 2(e) of the 1972 disorderly conduct by-law is substantially overbroad relative to its legitimate sweep.

The AG’s office didn’t throw out Middleborough’s law, since it was only reviewing the increase in fines for an older law that wasn’t under review. But it did say that if Middleborough were to actually enforce that law, it would be violating the Constitution, and it should probably consider repealing it. ACLU of Massachusetts’ Legal Director Matt Segal tells us the AG’s opinion on Brookline’s language would likely be the same.

The co-author of Brookline’s article doesn’t disagree. Brookline Town Meeting member Stanley Spiegel tells us that when he drafted his proposal, he wasn’t thinking about editing the existing language in the bylaw but only adding language that increases fines on people making a public nuisance. (They’re looking at you, late night partiers.)

“In retrospect I think it might have been a good time to consider deleting the language that I tend to agree is constitutionally questionable,” Spiegel says. He says he’ll look into whether it’s possible to remove the sections about offensive speech before the Town Meeting. “If it is not, I would think twice about recommending any action on this, [maybe] file again in the fall, and do a better job.”

In other words, swear away, Brookline. Just keep it down.