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In some circles the phrase "fuck you" is heard often and without a blink of the eye.
Now, those endearing words are at the heart of a free speech suit in Detroit, reports Tresa Baldas of the Detroit Free Press.
It began in August 2015 when Jackson Police officer Thomas Tinklepaugh showed up to the home of Tracy Smith, 45. The officer was responding to a neighbor's complaint of Smith's dog defecating in open lots near her home "and causing an attraction of mice to her home," the lawsuit says.
The officer approached the home and started talking to Smith's wife in the driveway. Smith appeared from the back of the home and started taking pictures of the officer talking to his wife.
As the conversation went on, the officer reportedly told Smith: "Will you stop swearing in front of these . . .children please? Otherwise you're going to be charged with being disorderly."
Smith, according to the federal lawsuit, replies: "Fuck you. Fuck you. Fuck you."
The officer then tackles Smith, handcuffs him and jails him, the U.S. District Court suit says. It says he was treated at a local hospital for injuries sustained during the arrest. He was released from jail after two days. He was charged with one felony count of assaulting-resisting-obstructing.
The court filing, which also alleges assault and battery and false imprisonment, goes on to say:
The words plaintiff spoke to Defendant Tinklepaugh —“fuck you”— amount to constitutionally protected speech. Attempting to constitutionally justify his actions, Defendant Tinklepaugh initially indicated he arrested Plaintiff Tracy Smith for swearing in front of children.
Then, realizing that the Michigan Court of Appeals in 2004 had struck down as unconstitutionally vague Michigan’s indecency statute which prohibited swearing in front of children, at the preliminary examination defendant Tinklepaugh testified (and the prosecutor argued. . .) he arrested Plaintiff Tracy Smith for being a disorderly person by “causing a contention”.
The court threw out the charges. The prosecutor lost on appeal.
"While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric; and, our law has clearly established this word as constitutionally protected speech," Smith's lawyer Robert Gaecke Jr. wrote in the suit, which asks for an unspecified amount of damage.
First Amendment expert Erwin Chemerinsky, a constitutional law scholar, tells the Freep that the US. Supreme Court has ruled police cannot arrest someone for swearing. "There is nothing illegal about telling a police officer, 'fuck you,'" says Chemerinsky, dean of law at the University of California-Irvine.
The Freep couldn't reach Jackson County Prosecutor Jerard Jarzynka for comment.
