The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
I have received numerous calls regarding the offensive display on this truck as it is often seen along FM 359. If you know who owns this truck or it is yours, I would like to discuss it with you. Our Prosecutor has informed us she would accept Disorderly Conduct charges regarding it, but I feel we could come to an agreement regarding a modification to it.
But such speech can't be punished as "disorderly conduct" unless it is basically a personal challenge to a fight (so-called "fighting words"), as the Supreme Court held in Cohen v. California (1971) (where Cohen had been prosecuted for wearing a jacket that said "[F—] the Draft"):
This Court has also held that the States are free to ban the simple use, without a demonstration of additional justifying circumstances, of so-called "fighting words," those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction. While the four-letter word displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative fashion, in this instance it was clearly not "directed to the person of the hearer." No individual actually or likely to be present could reasonably have regarded the words on appellant's jacket as a direct personal insult.
This case isn't quite identical to Cohen, because the sticker does expressly insult a group of people (all you Trump voters); Cohen's jacket just expressed disdain for a governmental process. Still, this doesn't mention any particular person, nor is it said to a particular person. Courts have not seen such insulting criticism of large groups—whether political, religious, racial or otherwise—as punishable, at least since Cohen.
Thanks to Brandon Combs for the pointer.
UPDATE: A reader tells me that the sheriff seems to be backing down, according to the Associated Press:
[A]t a news conference …, Nehls seemed to back down from that idea, saying he supports freedom of speech and acknowledging [Cohen v. California] ….
"We have not threatened anybody with arrest. We have not written any citations," Nehls said. "But I think now it would be a good time to have meaningful dialogue with that person and express the concerns out there regarding the language on the truck." …
The sheriff said he wants to avoid a situation where somebody could take offense to the sign on the truck, possibly leading to a confrontation.
"I don't want to see anything happen to anyone," Nehls said. "With people's … mindset today, that's the last thing we need, a breach of the peace."
Note also that even threats of arrest and prosecution may themselves violate the First Amendment to the extent they deter speech, see Bantam Books, Inc. v. Sullivan (1963).