Fact check: Shouting profanity about the president is protected by the First Amendment, legal experts say

·5 min read

The claim: Swearing at the president may be illegal

Right-wing demonstrators headed to the nation’s capital on Sept. 18 to express their support for the individuals federally charged in connection with the Jan. 6 insurrection at the U.S. Capitol.

There were more police officers and reporters than protesters who attended the “Justice for J6 rally,” and officials reported just four arrests. But as law enforcement braced for the possibility of violence ahead of the demonstration, a warning went viral on social media claiming that swearing at the president might be illegal.

“It’s Not Just Dangerous; Screaming F*** Biden May Also Be Illegal,” reads the headline of a purported Sept. 14 news article, which was shared to Instagram on Sept. 16. The post accumulated more than 2,000 likes within less than a week.

Text below the headline reads, “Experts warn that in addition to the violent incitement caused by screaming expletives at the president, such threats may also be criminal.”

Pages on Facebook such as The Typical Liberal and Young Americans for Liberty shared similar versions of the claim, while others claimed the article was satirical.

However, the article is not authentic, and legal experts who spoke with USA TODAY said using profanity when speaking about the president is protected by the Constitution.

"There is no law preventing Americans from yelling profanities at the president of the United States," said Ken Paulson, director of the Free Speech Center at the College of Media and Entertainment at Middle Tennessee State University.

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The pages that shared the post did not return requests for comment.

Cursing the president is constitutionally protected

A search of the headline included in the posts leads to memes on iFunny and online forums. The author of the text, who goes under the name "Eugene Bischvetz," first shared the screenshot of the text to Instagram on Sept. 15.

The social media pages for the account "Eugene Bischvetz" feature satirical content and memes, and the screenshot circulating online is not a legitimate news report.

Meanwhile, legal experts say using profanity when speaking about the president or public officials is not illegal, as the posts claim.

"Cursing at the president is protected speech under the First Amendment," said Robert Richards, founding director of the Pennsylvania Center for the First Amendment at Penn State.

Richards pointed to the 1971 Cohen v. California Supreme Court case, in which a man had the F-word emblazoned on a jacket, and wore it in a courthouse to show his contempt for the military draft.

"The court expressed concern that, if the government could criminalize such expression, it could do so as a guise for suppressing unpopular views," Richards said via email.

The court ruled the man had a right to say it, and in his opinion, Justice John Marshall Harlan wrote, "One man's vulgarity is another's lyric."

Clay Calvert, a professor of law and director of the Marion B. Brechner First Amendment Project at the University of Florida, also referenced the Cohen case.

"At the heart of the First Amendment is the ability to freely criticize both government officials and government policies," Calvert said via email. "The U.S. Supreme Court has made it clear that what it calls the 'emotive' function of speech merits constitutional protection."

Calvert said as long as the speech does not amount to what courts call a "true threat" of violence, then it is protected.

"In brief, it's completely legal to swear about the president of the United States," he said. "It is not legal, however, to threaten the president of the United States."

Eugene Volokh, a professor of law at UCLA, noted there could be some cases where profanity toward a president might be unprotected.

"If you shouted it in a library, you might be disturbing the peace," Volokh said. "If you were to actually come up to Biden and say, F you, that might be so-called fighting words, personally addressed insults that are likely to start a fight."

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In recent local controversies, attorneys have found that cases involving swear words and the president are protected speech.

For example, in February, assistant city of Fargo attorney Alissa Farol said a homeowner's flag in North Dakota that used profanity against President Joe Biden was protected by the First Amendment. A similar situation took place in New Philadelphia, Ohio, where a law director told city council members the city could not do anything about a banner that used an expletive to attack Biden.

Our rating: False

Based on our research, we rate FALSE the claim that swearing at the president may be illegal. Legal experts say cursing the president is protected by the First Amendment of the Constitution unless someone is disturbing the peace, using fight words, or making a direct threat to the president. Further, the headline seen in the posts is not an authentic news report.

Our fact-check sources:

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This article originally appeared on USA TODAY: Fact check: Legal experts say swearing at the president is not illegal

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