An interesting First Amendment battle is taking place in New Jersey’s Supreme Court, where its judges are reconsidering the merits of a 70-year-old statute that makes repeated cursing in front of children a criminal offense for adults.
Arguments were heard on Monday in the case of John Tate, a man who was accused of a sexual assault on his 13-year-old foster son in 2009. Tate faced various charges, but he accepted a plea bargain to a lesser offense.
Tate was found guilty of violating New Jersey statutes 9:6:1 and 9:6-3, which make it a fourth-degree crime for any parent, guardian, or person to habitually use “profane, indecent, or obscene language” in front of a minor because it could affect their morals. The law falls under the state’s child abuse statutes.
Tate had served three years before accepting the plea bargain and he has finished his incarceration. Tate also made other appeals to have his plea withdrawn before this current challenge.
But now Tate and the American Civil Liberties Union are suing to withdraw his prior guilty plea based on a First Amendment argument.
The question put in front of the judges is this: “Did defendant’s admission during his plea allocution to cursing and using off-color language in such a way as to debauch a child’s morals provide an adequate factual basis to establish child neglect under N.J.S.A. 9:6-3?”
The New Jersey Law Journal has a recap of the arguments made on Monday.
“It’s hard to imagine that the use of a swear word could equal a felony,” said Michael Pastacaldi, Tate’s attorney. “It leads to an absurd result.”
The ACLU’s attorney for Tate, C.J. Griffin, argued that statute was clearly unconstitutional. “Curse words cannot be criminalized,” she told the court.
One of the jurists, Judge Barry Albin, then noted that accepting that argument would amount to the court saying it was permissible for parents or guardians to curse repeatedly in front of children.
Assistant Morris County Prosecutor John McNamara Jr. told the court that Tate’s guilty plea had to be taken in the context of the charges that he plea bargained down from, which could have put Tate behind bars for 20 years.
One key problem noted by Judge Albin was that Tate didn’t say what kind of offensive language he used when he pleaded guilty to the lesser crime. That’s an important point, since the state statute finds that “profane, indecent, or obscene language” in front of children is a violation of the law.
Obscenity in general presents important First Amendment conflicts and depending on the context of a sexually explicit obscenity, obscenities may not be protected by the First Amendment if they appeal to “prurient interests.”
The Supreme Court has debated this subject for decades, and one of the Court’s most-famous quotes came from Justice Potter Stewart in 1964, when he wrote that while he couldn’t form a written obscenity description, “I know it when I see it.”
Profane language enjoys much more First Amendment protection. Profane language, however, can’t include “fighting words” that provoke someone to violence, or language that incites a riot. Profane words can include language considered to be grossly offensive, including vulgar, racist and sexual themes.
Indecent language also has First Amendment protection because such words might not offend all people. The George Carlin “Seven Words” case was an example of the use of language about sexual or excretory organs or activities that can be restricted, but not totally banned, under the First Amendment.
Fourth-degree offenses in New Jersey can result in imprisonment for up to 18 months, along with substantial fines.
The ACLU has worked successfully to overturn anti-cursing laws in several states, including wins in North Carolina and Pennsylvania over profanity issues.
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