Cursing Protected by First Amendment?

July 7, 2008 - 8:02 PM

(CNS) – The trial of a man who has become known as the "cursing canoeist" ended with his conviction last Friday in Standish, Michigan Friday in a contest that pitted free speech advocates against those who would stop offensive language.

Timothy Boomer, 25, a computer programmer, was charged under a 102-year-old law that makes cursing in the presence of women and children a violation punishable by 90 days in jail or $100 fine.

The ACLU is arguing that Boomer's words were free speech protected by the First Amendment and asked the judge to throw out the case.

District Court Judge Allen Yenior refused, saying there was a compelling community interest in protecting the morality of children.

Boomer was convicted of yelling a barrage of obscenities after his canoe overturned and dumped him into the Rifle River last summer. A sheriff's deputy, who was at the scene, says he heard Boomer explode in a barrage of profanity loud enough to be heard a quarter-mile away.

Michael Smith, 32, was also canoeing down the river with his wife and his children, a 5-year-old son and 2-year-old daughter.

Smith testified he heard Boomer shout the "f-word" 50 to 75 times in a span of several minutes.

"I was afraid for my family. My adrenaline was rushing, my hands were tingling, my wife was covering my daughter's ears and I was trying to get through there as fast as I could," Smith told the court.

Boomer doesn't deny he used foul language after he fell in the river, but says he didn't know there were children nearby in the recreation area about 120 miles north of Detroit.

"The judge imposed a standard that he knew or should have known there were children in the area – that's the standard – made it very hard to win," Kerry Moss, a spokeswoman for the American Civil Liberties Union, which defended the case, told CNS.

"Expressing something someone might not like to hear and being threatening are two different things. He wasn't being threatening and had no intention to start a fight with anybody," Moss told CNS.

"If Mr. Boomer's words, when used as they were, were constitutionally protected speech, then a person could stand on a crowded public beach and shout those same words all day," Yenior said in a February ruling that allowed the trial to take place.

The defense, however, claims there were other, less inflammatory ways to prosecute the case, instead of invoking an archaic law that's never enforced.

"They didn't feel they had a strong enough case to use a disturbing the peace ordnance, which is why they tried out this 100-year-old statute," Moss said.

"There's a lot more offensive stuff out there. Your kids see this stuff, such as people getting killed, real murders, all the time on television. We can't have the government censoring all this. It's ridiculous," Moss said.

Arenac County sheriffs began patrolling the river last summer after property and business owners complained that drunken, rowdy boaters were getting out of hand. Sheriff's deputies issued up to 40 tickets a day on weekends, but most were for offenses such as public drunkenness, disorderly conduct and littering, according to testimony.

The case, which is being broadcast live on Court TV, has become a topic on talk shows across the country, and the butt of jokes locally.

"I canoed down the Rifle River, but don't ask me to swear to it," reads one T-shirt. "Talk dirty to me, but not on the Rifle River," says another.