The Right To Be a Jerk

The First Amendment protects ugly speech.

Being a jerk is not a crime. That's a lucky break for many of us, but it wasn't enough to keep Nate Cox out of hot water. On a fine spring day in April, Cox was driving down the street in Richmond, Virginia when he spied a member of the VCU campus Police Department nearby. Cox grabbed a bullhorn and shouted, "Stop harassing people, we pay your paychecks!" (Why did he have a bullhorn? That's an interesting question, but orthogonal to the issues here.)

Officer S.W. Kelley—the target of the taunt—jumped in his car, gave chase and pulled Cox over. When Cox asked why, Kelley told him, "You looked like you were a little distracted when you were driving." Kelley wrote up a charge of obstructing justice—which is an odd thing to write someone up for if you're concerned that he's not keeping his eyes on the road. Cox asked how he had obstructed justice. Kelley replied that Cox "distracted me from doing my job."

Cox demanded to speak with Kelley's supervisor. When the supervisor arrived, he and Cox had a frank exchange of views, and Kelley issued a new citation, for disorderly conduct. The supervisor told Cox that yelling at Kelley through a bullhorn was disorderly conduct. Cox, who also had a camera with him, posted a video of the incident online. You can find it at www.youtube.com/watch?v=8y85wzcIYYg—or just Google "the state vs. Nate Cox."

If you watch the clip, you might come away with the impression that Cox acted like an obnoxious punk. How? He said something that wasn't nice to a policeman, and he said it loudly. And as Kelley testified, "his attitude and the way he went about carrying himself" were on the sassy side—though there's no law requiring citizens to display cringing submission in the presence of a policeman, either.

Now, none of us is a mind reader. But it seems fair to wonder whether Kelley would have written Cox up if Cox had bellowed something more flattering to the ego, such as: "Thanks for keeping our streets safe, Officer!"

If the answer is no, then it looks as though Cox received a fine and a suspended jail sentence simply for expressing an opinion the government doesn't like. They do that sort of thing—in places like Cuba and North Korea. We're not supposed to do it in America.

But suppose the answer is yes. Suppose Cox had been given a summons for distracting Officer Kelley with high-decibel flattery. Does yelling at a cop as you're driving by meet the standard for disorderly conduct?

Not hardly. Virginia law specifies that disorderly conduct "shall not be deemed to include the utterance or display of any words." Further, it must have "a direct tendency to cause acts of violence by the person … at whom … such conduct was directed." And there is a whole string of cases in which the courts have found that people who said things much worse to police officers than Cox did had a First Amendment right to do so. In one, Ford v. City of Newport News, the accused "was so loud and boisterous that apartment dwellers in a nearby building came out on their porch and asked if the officers needed help." Yet the court found no basis for a disorderly-conduct charge.

Then there is City of Houston v. Hill, in which Raymond Wayne Hill started yelling at two Houston cops during an incident in 1982. "Why don't you pick on someone your own size?" he hollered. One of the officers asked, "[A]re you interrupting me in my official capacity as a Houston police officer?" Hill shot back, "Yes, why don't you pick on somebody my size?" The officers took him up on the suggestion and arrested Hill for violating a city ordinance prohibiting "intentionally interrupt[ing] a city policeman … by verbal challenge during an investigation."

This, the Supreme Court said, was wrong: "The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state," the court ruled. (By poetic coincidence, one of the officers in the Hill case was named Kelley.) Time and again, the courts also have said police officers should "exercise a higher degree of restraint" than the average citizen, even in response to so-called fighting words.

Yet despite all this, a couple of weeks ago Nate Cox was found guilty.

Earlier in the proceedings, Cox's lawyer had made a motion to dismiss the case. Richmond Judge Robert Pustilnik was unpersuaded. "Based on the content of the statement, your client was trying to be a jerk, and create trouble in a situation which had nothing to do with him, in which he had no business. Motion is denied."

Pustilnik is not what anyone would call a sworn enemy of the First Amendment. Back in December, he struck down the city of Richmond's new noise ordinance as unconstitutional, on the grounds that it was overly broad and that it discriminated in favor of religious utterances, which it exempted.

But this case, Pustilnik said during the trial, "is not a First Amendment situation. This is not some free-speech rights. This is a person who was … trying to aggravate an officer and incite something … for absolutely no reason."
Cox has appealed. Five bucks says he'll win. Charles Dickens may have been right when his Mr. Bumble called the law "a ass—a idiot." But there's nothing in it that says you can't act like one.

A. Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.