Attorney Allain Marain

Freedom of Speech

Upset over being disrespected by a clerk in the Bergenfield Police Department, Frank Ruthenbeck said to the clerk, “You big muttonhead. Do you think you are a czar around here?” Ruthenbeck was arrested and charged with violating a Bergenfield Ordinance. The ordinance stated, “No person shall utter any loud, profane, indecent, lewd, abusive or offensive language in any public place.” On those facts, the First Criminal Judicial District Court of Bergen County found Ruthenbeck guilty. Ruthenbeck appealed. On November 7, 1929, the Supreme Court of New Jersey reversed Ruthenbeck's conviction. In reversing, the court held:

That the dignity of the clerk may have been ruffled by the language addressed to him is possible, but that it was indecent or disorderly, as defined by the legislative power conferred on the borough council, we think is not established. It is not every trivial epithet, addressed by one person to another, even in the office of the clerk of the recorder's court and to a police officer doing desk duty there, that constitutes disorderly conduct.

The First Amendment of the United States Constitution specifies:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Supreme Court of New Jersey did not need to resort to the First Amendment to reverse Frank Ruthenbeck's conviction. Mr. Ruthenbeck's utterance, plain and simple, did not rise to the level of an offense that a municipality could prohibit. Other utterances, however, might be less innocuous. What then?

Fast forward to 1968. The Vietnam War was still raging. Young men were being drafted to fight in that war, and dying. Against that backdrop, Paul Robert Cohen entered the Los Angeles County Courthouse. He was wearing a jacket on the back of which were the words, “Fuck the draft.” California Penal Code Section 415 provided at the time:

Every person who maliciously and willfully disturbs the peace or quiet of any neighborhood or person, by loud or unusual noise, or by tumultuous or offensive conduct, or threatening, traducing, quarreling, challenging to fight, or fighting, or who, on the public streets of any unincorporated town, or upon the public highways in such unincorporated town, run any horse race, either for a wager of for amusement, or fire any gun or pistol in such unincorporated town, or use any vulgar, profane, or indecent language within the presence or hearing of women or children, in a loud and boisterous manner, is guilty of a misdemeanor, and upon conviction by any Court of competent jurisdiction shall be punished by fine not exceeding two hundred dollars, or by imprisonment in the County Jail for not more than ninety days, or by both fine and imprisonment, or either, at the discretion of the Court.

Cohen was charged with violating Section 415. The Los Angeles Municipal Court found Cohen guilty and sentenced him to thirty days imprisonment. The Court of Appeal of California affirmed Cohen's conviction. The California Supreme Court refused to review the conviction. Cohen appealed to the United States Supreme Court. The United States Supreme Court, in a five to four decision, reversed Cohen's conviction. Explaining that reversal, the Court observed:

The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

Cohen v. California remains the law of the land. Other cases have joined Cohen. Thus in Lewis v. City of New Orleans, the United States Supreme Court ruled New Orleans Ordinance 49-7 facially unconstitutional. That ordinance specified, “It shall be unlawful and a breach of the peace 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.” Lewis involved a situation wherein an officer had asked the husband of Mallie Lewis to produce his driver license. Ms. Lewis said, “You god damn m. f. police--I am going to Giarrusso (the police superintendent) to see about this.”

These expansive rights of free speech bother many police officers, and other public officials. Contrary to the holdings of cases such as Cohen and Lewis, these officials not infrequently arrest persons for speaking their mind. In so doing, they violate Americans' right to freedom of speech. And in so doing, they can be successfully sued.

Suing public officials is not easy. These lawsuits often last for many months, sometimes years. They are costly. However, upon concluding lawsuits such as these, Civil Rights Statutes allow successful plaintiffs to recover their legal fees and costs from the offending public officials. For these reasons, New Jersey lawyers are often willing to rely upon an eventual court-ordered fee award when handling freedom of speech cases.

Allan Marain is freedom of speech civil rights lawyer. He handle freedom of speech civil rights cases. He invite persons charged with or prosecuted for violations of their freedom of speech to call for a no-charge no-obligation conference.

Free speech is one of your freedoms. Use it! Enforce your rights!

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