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MICHELE A. PARISH, ACTING EXECUTIVE DIRECTOR May 5, 1998 Lorne Kramer, Chief of Police Dear Chief Kramer: I am writing to you regarding Section 21-9-412 of the Colorado Springs Municipal Code, which is titled "Offensive Language." The text of the ordinance reads as follows:
Officers of the Colorado Springs Police Department have been enforcing this ordinance and charging individuals with a crime solely for using language that police officers deem to be offensive. This practice is a clear violation of the First Amendment. The American Civil Liberties Union has obtained a number of the summonses that Colorado Springs police have issued in the course of enforcing this ordinance. The following are samples of the brief narrative descriptions that the officers provided to describe the facts that they believe warranted prosecution under the ordinance:
These examples demonstrate that Colorado Springs police are charging individuals with a criminal offense solely for their choice of words. In an article published in the December 24 issue of the Colorado Springs "Independent", Sergeant Brian Ritz was identified as the overseer of the downtown foot patrol, which has apparently issued many of these summonses. In that article, Sergeant Ritz was quoted as saying that cursing is not protected by the First Amendment. On the contrary, the language that is described in the summonses quoted above is language that is clearly and definitely protected by the First Amendment. In Cohen v. California, 403 U.S. 15 (1971), the United States Supreme Court reversed the conviction of a young man who had been prosecuted for wearing a jacket that displayed the words "Fuck the draft." The Court pointed out that "one man’s vulgarity is another’s lyric," 401 U.S. at 25; that government officials cannot be trusted to make principled distinctions between forbidden words and permitted words; and that the Constitution leaves matters of taste and style to the individual. Id. In the Cohen decision, the Supreme Court pointed out that permitting the censorship of particular words posed "a substantial risk of suppressing ideas in the process." Id. at 26. "Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views." Id. This is exactly what happened in Colorado Springs on two occasions to Richard Bogan, according to an article that appeared in the February 18 issue of the "Independent". The first time, Bogan used the word "bullshit" to criticize an officer’s decision to ticket another individual for throwing a cigarette butt on the ground. A few days later, when Bogan was discussing the anti-profanity ordinance with friends, he received a second summons because an officer overheard him characterizing the ordinance as "bullshit." Bogan’s criticism of police practices and municipal policies, including his particular choice of words, is fully protected by the First Amendment. Even when profanity is directed against a police officer, it is constitutionally protected. For example, in Lewis v. City of New Orleans, 415 U.S. 130 (1974), the Supreme Court considered a New Orleans ordinance that made it a crime "for any person wantonly to curse or revile or to use obscene or opprobrious language toward or with reference to any member of the city police while in the actual performance of his duty." Id. at 132. The Court held that the ordinance was unconstitutionally overbroad because its prohibitions were not limited to what have been called "fighting words," which are words that "by their very utterance inflict injury or tend to incite an immediate breach of the peace." Id. at 133; see also Gooding v. Wilson, 405 U.S. 518 (1972) (invalidating statute banning "opprobrious language"). Like the ordinance invalidated in Lewis, the Colorado Springs ordinance is not limited to the narrow class of speech that the Court regards as "fighting words." Because it prohibits speech that is constitutionally protected, it is unconstitutionally overbroad. Neither the ordinance nor any police guidelines inform police officers what language is punishable under the ordinance and what language is permissible. Indeed, according to the report in the "Independent", Sergeant Ritz says that this determination is left to the officer’s discretion. That discretion also violates the Constitution. As the Supreme Court has explained, "we have repeatedly invalidated laws that provide the police with unfettered discretion to arrest individuals for words or conduct that annoy or offend them." City of Houston, Texas v. Hill, 482 U.S. 451, 465 (1987). In Hill, the Supreme Court held that a Houston ordinance was unconstitutional because it "effectively grants police the discretion to make arrests selectively on the basis of the content of the speech." Id. at 465 n. 15. As the summonses quoted above demonstrate, that is precisely what has been happening in Colorado Springs. I am writing to ask you to instruct your officers to stop issuing citations because of citizens’ choice of words and that you prohibit your officers from enforcing the Colorado Springs "Offensive Language" ordinance. I ask that you reply to me by May 20, 1998. If I do not hear from you by then, I will assume that it remains the policy of the Colorado Springs Police Department to charge individuals with a criminal offense for cursing, swearing, or otherwise using language that police officers, in their discretion, deem to be offensive. Sincerely, Mark Silverstein,
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