Swearing at Policeman Is ‘Free Speech,’ Court Agrees

Rejecting an appeal from California prosecutors, the U.S. Supreme Court on Tuesday left intact a lower court ruling that a bystander who yelled a vulgar epithet in the face of a police officer investigating an accident was exercising “free speech” and thus was protected from criminal charges.

San Diego authorities had contended that the epithet represented “fighting words”--beyond constitutional protection--and that a state appeal court had wrongly overturned the conviction of the bystander merely because the officer did not react violently.

“The fact that a particular peace officer is able to restrain himself does not negate the character of the epithet as ‘fighting words,’ ” San Diego Dist. Atty. Edwin L. Miller Jr. said in a petition to the justices. “It makes no sense to ascribe to a police officer a tolerance or boiling point higher than the ordinary man.”

The court, in a brief order, bypassed a chance to further define a venerable 1942 ruling that put “fighting words”--along with obscene and libelous remarks--outside First Amendment guarantees. In that case, the court upheld the conviction on charges of breach of the peace of a defendant who called an officer a “goddamned racketeer” and a “damned Fascist.”

The California case arose in August, 1983, when California Highway Patrol Officer C. F. George was dispatched to Solana Beach to investigate a traffic accident.

According to testimony, as George was interviewing the driver, a man identified as Gerald Neil Callahan approached the officer, identified himself as a physician and demanded that an ambulance be sent to the scene--even though the driver adamantly refused medical attention. Later, the driver relented and an ambulance was called, but Callahan continued to pursue the officer. George said Callahan appeared intoxicated and was so close that he spat on the officer’s face.

Despite several warnings, Callahan kept yelling at George, moving within inches of the officer and calling him an obscene name. Finally, Callahan was arrested for interfering with an officer’s performance of duty. On the way to a detention facility, Callahan apologized and admitted he had been wrong about the driver’s need for medical attention.

A San Diego jury acquitted Callahan on the charge of interfering but convicted him of a lesser offense--using “offensive words in a public place which are inherently likely to provoke an immediate violent reaction.”

However, a state Court of Appeal in San Diego overturned the conviction, ruling that Callahan’s remarks were “free speech” under the First Amendment. “The record shows the officer was neither offended by Callahan’s foul language nor provoked to react violently,” the court said.

Ironically, the court, noting that Callahan had repeatedly ignored the officer’s warnings, said that if the defendant had been convicted of interfering with the officer, it would have upheld that conviction.

The California Supreme Court denied review in the case but ordered the appellate decision formally published, an action that requires lower courts to follow it as binding precedent.

Callahan’s lawyer, James M. Gattey, responding to the appeal by San Diego authorities (People v. Callahan, 85-549), said the defendant had used “an unfortunate choice of words” to express his frustration but that in this situation they were not “fighting words.”