Here’s a scenario: conservative writer, TV personality and pundit Ann Coulter (who recently was irked by the picture Time used of her on its cover) is speaking at a university in Texas. At the end of the session, a student taking the mike during the obligatory Q&A for the high-paid speech asks a blunt and highly vulgar question, and even makes hand motions.
He is then arrested for disorderly conduct. Reprehensible? Definitely, especially to anyone who like TMV wants to see the discourse in this country elevated — not dropped a few notches by either side (which means if someone says the other side is doing it that’s an irrelevant point since no one should be doing it).
The key question becomes: will the arrest stand up in court?
First, read the original complaint via The Smoking Gun. We’re passing on putting the full description of what was said and communicated via hand gestures. This is a family site (hi, Mom!).
Then read in full lawyer and professor Eugene Volokh’s analysis. We’ll give you the last few paragraphs here:
But such speech, even if vulgar, is constitutionally protected unless it contains “personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction.” See Cohen v. California, 403 U.S. 15 (1971); Duran v. Furr’s Supermarkets, Inc., 921 S.W.2d 778 (Tex. App. 1996).
Simply getting the crowd riled up doesn’t make the speech unprotected. Simply saying offensive things to Coulter doesn’t make the speech unprotected. If the student had personally called her some epithet, then the matter might have been different. But just asking a rude question that includes a profanity (but not one used to describe Coulter) is not unprotected, and neither is making sexually suggestive gestures (again, when they didn’t seem to be personal insults of Coulter).
I should stress that the student’s speech was rude. What I take to be the substantive question (what cultural conservatives who support morals legislation think about the fact that many upstanding married people engage in “sodomy,” chiefly oral sex but sometimes also anal sex) is quite legitimate, but there’s no reason to throw in profanity or sexual gestures. Also, if the person had been speaking out of turn (i.e., heckling) and was prosecuted for that, the matter would be very different. But based on what I see in the affidavit, any arrest and prosecution of this student would be unconstitutional.
One thought: maybe the language was used this time because they ran out of pies.
Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.