COLUMN: Case Law Doesn’t Support Arrest of Protester with ‘Obscene’ Sign in Lowndes Co.

The following article is an editorialized piece. Any views depicted reflects those of the author and not those of AllOnGeorgia.

Amidst protests across the country, a woman in south Georgia was arrested for peacefully protesting with a sign the Sheriff said contained profanity.  

Lowndes County Sheriff Ashley Paulk told WCTV that his office supports the right to peacefully protest but would arrest protesters holding signs with profanity. The day prior, Paulk himself took a sign reading “F*ck Trump” (no redaction) from a group of protesters in downtown Valdosta. As WCTV reported the incident:

[You can see the video here]

One point of contention is that Paulk did not identify himself and was not in uniform at the time of the skirmish, which Paulk acknowledged. Though Paulk seized the sign from the group, once it became known that Paulk was Sheriff, protesters surrendered the sign and shook Paulk’s hand.

But the story does not end there.

On Thursday, a protester created a new sign aimed at the Sheriff himself, according to The Georgia Gazette. This time, the sign read: “ASHLEY PAULK SU*KS TRUMP’S DI*K”.” (Actual sign did not include asterisks) 

The woman was arrested and charged with disorderly conduct, a misdemeanor that carries a maximum penalty of up to a year of imprisonment and a fine of up to $1,000.

OCGA § 16-11-39 (2018) under Georgia law is considered a crime ‘against safety and public order.’ Subsection of the code section (a)(4) defines ‘disorderly conduct’ as an incident that “without provocation, [a person] uses obscene and vulgar or profane language in the presence of or by telephone to a person under the age of 14 years which threatens an immediate breach of the peace.” The law dates back decades when the state legislature approved it, but has been challenged on First Amendment grounds here and in other states ever since. 

A 1987 case –  Crolley v. State, 182 Ga.App. 2 (1987) – held that simply using vulgar, obscene, or profane language to another person (over the age of 14) is not a crime unless those words also constitute “fighting words” – which, by and large, require a ‘call to action’ of sorts. Additionally, in most every case examined by the courts, justices have considered how the defendant was behaving at the time: were the statements compounded by accompanying threatening acts?

The issue in relation to the protester stems from what is defined as ‘obscene’ and ‘vulgar, who determines what constitutes those standards, and what it means to be ‘in the presence of.’ 

The Sheriff told media outlets that the office received calls from passersby over the language of the sign. One component Sheriff Paulk would have to prove is that one of those vehicles had minors under the age of 14 in the vehicle – who also had the capability to read. Even so, the standard of ‘being in the presence of’ as referenced in the code section may not pass the constitutional muster for people passing in vehicles.

Consider Turner v. State, 274 Ga.App. 731 (2015) in which a driver yelled “you bastards” at the police from a moving vehicle and continued driving. Because the driver was not ‘face-to-face- with the police when the words were uttered, the woulds “therefore not incite an immediate breach of the peace.”

A few examples which did not meet the standard of disorderly conduct:

• Calling an officer a “f***ing a**hole,” when the arrestee did not 1) raise his voice and 2) did not appear to be a danger to anyone. Merenda v. Tabor, No. 12-12562, 2013 U.S. App. LEXIS 2351 (11th Cir. Feb 1, 2013).
• Giving an officer the middle finger because the Court ruled it was a form of protest. Freeman v. State, 302 Ga. 181 (2017). 
• Saying “f*** you” to an officer during a traffic stop because no non-verbal aggressive behavior was exhibited. Knowles v. State, 340 Ga.App. 274 (2017). 

Additionally, on the day Paulk took the sign from protesters, the sign read ‘F*ck Trump,’ a word that includes a word that most would contend is vulgar in nature despite the other circumstances already laid out. But the sign leading to arrest the following day did not use that word and arguably the worst word was ‘D*CK.’ If Paulk’s office proceeds with the case, which it appears they will, what will that mean for everyone named Dick in Lowndes County?

From what I’ve seen, the people in communities around the country whose protests remained peaceful are beyond thankful for the lack of violence and destruction. Does an off-color sign really justify time in jail and in the court system?

And let’s call a spade a spade: This happened because Paulk didn’t like what the signs had to say.