On January 5, 2015, the Town of Littleton agreed to pay $17,500 and conduct further training to settle damages and attorneys’ fees claims with Bethlehem resident Richard Kearns—a 72-year-old National Guard veteran with no criminal history—who was arrested for harassment and disorderly conduct after allegedly calling a parking enforcement officer an expletive while he was in a public space.
Mr. Kearns denies calling the parking enforcement officer an expletive. Nonetheless, Mr. Kearns has long been active in politics and holds opinions about how to maintain a vibrant downtown, which includes, among other things, encouraging business by providing free downtown parking. Mr. Kearns expressed these views peacefully to the parking enforcement officer.
Mr. Kearns alleged that his prosecution violated his constitutional rights. The law is clear that swearing (cursing or using profanity) in public or to enforcement officers is protected speech under the First Amendment. Therefore, disorderly conduct and harassment citations and arrests for profanity (usually termed “obscenity” in the citations) are unconstitutional. Countless courts have repeatedly held for the last two decades that police cannot arrest people for either using profanity in public or directing it at enforcement officers or civilians.
The rationale for these decisions is straightforward. As the U.S. Supreme Court has held, “[t]he freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principle characteristics by which we distinguish a free nation from a police state.” Houston v. Hill, 482 U.S. 451, 462-63 (1987). Thus, criticism of government officers, profane or otherwise, is not—and cannot be under the First Amendment to the Constitution—a crime.
On June 11, 2014, the American Civil Liberties Union of New Hampshire (“ACLU-NH”) wrote to the Littleton Police Department demanding that all charges be dismissed. In response to the ACLU-NH’s letter, the State dismissed all charges on June 16, 2014—one day before the scheduled trial. Leonard D. Harden of Harden Law Offices in Lancaster also represented Mr. Kearns in the criminal case.
The ACLU-NH then threatened a lawsuit for violation of Mr. Kearns’ First Amendment right to free speech. To avoid suit, the Town agreed to the $17,500 settlement and to further train its officers, though the Town denies wrongdoing in the settlement agreement.
“This case is a successful example of our battle to enforce citizens’ First Amendment rights. This includes speech that may be offensive to some, including government officials, but which is absolutely protected by the First Amendment. It is important that police remember that they cannot prosecute citizens for speaking freely, even if the speech contains profanity that offends government officials. This is a fair agreement for all sides involved.” said Gilles Bissonnette, the ACLU-NH staff attorney who represented Mr. Kearns.
“The First Amendment right of free speech is the cornerstone of life in a free society and is reflective of New Hampshire’s ‘live free or die’ spirit. Even caustic comment, especially on public issues, is permissible discourse. I’m glad that I was able to fight for my rights and work to ensure that nobody else is arrested for exercising free speech,” said Mr. Kearns.
All text can be attributed to Mr. Bissonnette except where otherwise noted.