Free Speech

A Fun Free Speech Opinion I Just Ran Across

|The Volokh Conspiracy |

Canney v. State (Fla. Ct. App. 1973), in which Robert Benjamin Canney was convicted of "resisting an officer with violence" when he was being arrested for "profane, vulgar or indecent language" ("bring the Goddamned war home" and "the Goddamn pigs") at a 1970 anti-Vietnam war rally in St. Petersburg, Florida. Canney argued the arrest was unlawful, but the panel majority disagreed, on the grounds that the city ordinance did ban this speech, and had not been expressly invalidated at the time of the arrest (regardless of whether it was unconstitutional under then-recent First Amendment precedents). Chief Judge Robert Mann dissented, in a colorful opinion; here are some excerpts:

If in Stalin's time, in the St. Petersburg which had by then become Leningrad (saints having fallen from grace in the Soviet Union), a citizen had been arrested for cursing the 'goddam war' and calling the visibly present police 'goddam pigs,' I could understand it. But Canney was arrested at a peace rally in St. Petersburg, Florida, and I cannot understand it.

The legality of Canney's arrest for profanity is essential to affirmance of this conviction. The trial judge might have been misled in this regard, but we are not. In the time-honored tradition of the trial bar, the law was researched after the appeal was filed…. The statute requires that the state prove that Canney resisted a Lawful arrest, and that necessarily involves the question whether, in a political context, where there is no disturbance whatever except that created by these two overzealous policemen, and where Canney had finished his vulgar and repulsive speech and sat quietly down before he was arrested, an American citizen can be arrested for invoking divine vengeance upon a war he doesn't like and a constabulary he regards as repressive….

The trial court did not fully consider Canney's claim based on discriminatory enforcement. 'Goddam' is a word taken into the vocabulary, and infests our literature. It is a bi-partisan epithet: President Roosevelt applied it to a broken voting machine and former Attorney General John Mitchell was quoted by the Associated Press on June 15, 1972, as using it.

It transcends terrestrial boundaries: an astronaut on the moon used it, and I heard no clamor for his prosecution, though I recognize a delicate venue problem. The law seems to be that you can't use the phrase in St. Petersburg if it offends the police….

Canney spoke to a willing and appreciative audience, and that language the police found offensive has been attributed in recent weeks, in publications of national circulation, to the President of the United States, a former Attorney General and his articulate wife. One of those three is presently under indictment, but not for anything so petty as the offense for which Canney was arrested….

I do not think that Canney is any conservator of American liberty. He is a consumer of our liberties, one of those whose idea is to push his constitutional liberty to the point of provocation…. [I]t would work no hardship on Canney to refrain from uncouth utterance in public. But what is involved is not what they should have done, but what the law requires….

What makes American beautiful is not only its purple mountain majesties and the like, but the fact that a crude person like Canney is at liberty to speak his mind about the nation's conduct of a war in Vietnam, and is under no compulsion to agree with me or the St. Petersburg police force. I count it a grave reflection on this court that we will not enforce his clear constitutional rights.

Belief in the perfectibility of man consoles me somewhat. I have no cave on whose walls to draw this prophecy, so I entrust it to the ephemeral pages of the Southern Reporter: someday before God in His own good time comes to judge the Vietnam war, vulgar orators, insensitive policemen and—humbling thought—even judges, some anthropologist seeking the missing link between the apes and civilized man is going to discover that we are it….