The Volokh Conspiracy - Arrested for Asking a Vulgar Question:

Vince Finaldi points me to the affidavit justifying the arrest of a student for asking a rude question at an Ann Coulter speech. If the facts in the affidavit are accurate, then it looks like the student has an excellent First Amendment defense.

The student is not being prosecuted for heckling, in the sense of shouting things while the speaker was speaking; content-neutral heckling bans, I think, would be quite constitutional if properly drafted, but that isn't involved here. Rather, he's being prosecuted for asking "You say that you believe in the sanctity of marriage . . . . How do you feel about marriages where the man does nothing but fuck his wife up the ass?," and then going back to his seat while "making a repeated motion with his right arm and hand, which was cupped in a circular shape, towards his crotch area simulating masturbation." This, the affidavit says, was "disorderly conduct" under Texas law, which is to say "abusive, profane, and vulgar language and obscene gesture," and it's unprotected because it supposedly "incited an imminent breach of the peace of the peace within the crowd," by provoking some of the audience to scream, shout, and boo, and by leading "a few" of Coulter's supporters to "st[an]d up as if to chase down" the questioner.

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.

	[Eugene Volokh, May 4, 2005 at 3:35pm] Trackbacks Arrested for Asking a Vulgar Question: Vince Finaldi points me to the affidavit justifying the arrest of a student for asking a rude question at an Ann Coulter speech. If the facts in the affidavit are accurate, then it looks like the student has an excellent First Amendment defense. The student is not being prosecuted for heckling, in the sense of shouting things while the speaker was speaking; content-neutral heckling bans, I think, would be quite constitutional if properly drafted, but that isn't involved here. Rather, he's being prosecuted for asking "You say that you believe in the sanctity of marriage . . . . How do you feel about marriages where the man does nothing but fuck his wife up the ass?," and then going back to his seat while "making a repeated motion with his right arm and hand, which was cupped in a circular shape, towards his crotch area simulating masturbation." This, the affidavit says, was "disorderly conduct" under Texas law, which is to say "abusive, profane, and vulgar language and obscene gesture," and it's unprotected because it supposedly "incited an imminent breach of the peace of the peace within the crowd," by provoking some of the audience to scream, shout, and boo, and by leading "a few" of Coulter's supporters to "st[an]d up as if to chase down" the questioner. 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.