On Friday, a Michigan jury chose to convict Timothy Boomer of a misdemeanor for swearing in the presence of women and children, a violation of an 1897 ordinance. Although some might consider his language objectionable, it is protected by the First Amendment. The ordinance under which he was convicted is sexist and unconstitutional and should be abolished.
Boomer was paddling on a Michigan river last Aug. 15 when he fell out of his canoe. According to the police report, he began yelling obscenities in anger, unaware of the presence of Tammy Smith and her two young children, who were standing a quarter of a mile downriver. A police officer ticketed Boomer for a misdemeanor.
The Michigan ordinance under which Boomer was ticketed prohibits one from using “any indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child.” Boomer could be sentenced to jail for up to 90 days or to pay a small fine.
The Michigan chapter of the American Civil Liberties Union provided counsel for Boomer and recognized the absurdity and unconstitutionality of the ordinance. What constitutes indecent, immoral or insulting language is entirely subjective. For example, the phrase “oh, my God” is very objectionable to some, but harmless to others.
Another objectionable portion of the ordinance is its implication that women need special protection. Although it is clear how a 102-year-old law may have been considered appropriate during its time, its sexism is equally clear when evaluated from a contemporary perspective. Kary L. Moss, the executive director of the ACLU, states that the “archaic law singles out women for special treatment without any reasonable justification — a practice held unconstitutional long ago. The law is based upon outmoded stereotypes about women’s sensitive nature and need for protection.”
The ordinance is not even well established in Michigan. Two counties have dismissed the law, which, according to the ACLU, “has not been tested on a statewide level.” In 1969 the Michigan Court of Appeals declared that “the constitutional right to communicate ideas would be unduly limited if the state could take upon itself the right to prohibit the use of certain words, however offensive and odious they may be.”
The most important flaw in the ordinance is that it violates the protection granted by the First Amendment, which states that “Congress shall make no law … abridging the freedom of speech.” Considerable latitude is offered to individuals to express themselves in almost any manner, regardless of the objectionable nature of the expression. Since 1791, the few instances that have been granted exceptions from protection include speech that is obscene in a sexually provocative way or when it can be interpreted as containing “fighting words.”
After 102 years, the flaws of this ordinance have become clear. Its subjective nature is impossible to enforce consistently, its sexism is inappropriate and its approach is unconstitutional. The court that hears the ACLU’s appeal should consider these flaws and abolish it as an unreasonable abridgment of the First Amendment.