The Constitution Is Not an Etiquette Manual
State Rep. Jeff Dotseth, Protest Speech, and the Rights We Don't Like
by Carlton County Watch
There is an uncomfortable truth about the United States Constitution:
It protects people we disagree with.
It protects people whose politics we dislike.
It protects ideas we consider foolish.
And sometimes it protects words, signs and gestures we consider rude, vulgar, offensive or downright reprehensible.
That isn't a defect in the First Amendment.
That is precisely why the First Amendment exists.
Minnesota District 11A Representative Jeff Dotseth recently submitted a letter published by the Pine Knot News titled, “Can't we all get along with each other?”
The letter describes a Saturday morning in Moose Lake when Dotseth and others were preparing for what he called a lawful permit-to-carry class. Across the street were people associated with a No Kings protest.
To Dotseth's credit, he begins with an important constitutional acknowledgment:
The protesters had every right to be there.
Freedom of speech belongs to everyone, he wrote — including people with whom we strongly disagree. He later invited critics to disagree with him, protest his positions, carry their signs and exercise their rights.
On that fundamental proposition, Dotseth and the Carlton County Watch agree completely.
But then his letter raises a much larger constitutional question.
Dotseth says people leaving the protest directed vulgar comments and gestures toward his group. His young granddaughters were present. He understandably disliked what they heard and saw.
He writes that freedom “should also come with basic decency and respect” and asks when political disagreement became permission to abandon courtesy, “especially in front of children.”
And that is where an important distinction needs to be made.
Courtesy Is Not a Condition of Liberty
We can encourage courtesy.
We can teach our children civility.
We can criticize people for acting like jerks.
We can answer offensive speech with better speech.
But none of those propositions changes the Constitution.
The First Amendment does not condition freedom of speech upon politeness.
Nor does it protect only speech that elected officials, parents, newspaper editors, police officers — or the Carlton County Watch — consider tasteful.
If it did, it would hardly be a constitutional right at all.
The First Amendment exists primarily for the speech somebody wants silenced.
The pleasant conversation between neighbors rarely needs constitutional protection.
The angry protest does.
Minnesota Has Already Answered This Question
This isn't merely philosophical.
Minnesota courts have repeatedly confronted precisely this distinction between offensive behavior and constitutionally unprotected speech.
Nearly fifty years ago, in In re Welfare of S.L.J., the Minnesota Supreme Court considered the prosecution of a 14-year-old girl who directed an extraordinarily vulgar phrase — “Fuck you pigs” — toward police officers.
Nobody had to approve of her language.
The Minnesota Supreme Court certainly didn't.
But approval wasn't the constitutional test.
The Court held that Minnesota's disorderly-conduct law could not constitutionally criminalize words merely because they create anger, resentment or offense. As applied to speech, the statute had to be confined to the narrow category of genuine “fighting words”—speech inherently likely, under the circumstances, to provoke immediate violence. In re Welfare of S.L.J., 263 N.W.2d 412 (Minn. 1978).
That principle remains enormously important today.
Political speech doesn't lose constitutional protection because somebody finds it disgusting.
Minnesota Protesters Have Been Here Before
In State v. Peter, two animal-rights activists protested outside a Minneapolis fur store.
They yelled.
They chanted.
Their demonstration was intentionally confrontational.
They were convicted of disorderly conduct.
The Minnesota Court of Appeals reversed.
Why?
Because political expression doesn't suddenly become unprotected simply because the manner in which it is delivered is noisy or offensive. When political speech and expressive conduct are intertwined, Minnesota courts have held that they remain protected unless they cross the constitutional boundary into fighting words or some other recognized category of unprotected expression. State v. Peter, 798 N.W.2d 552 (Minn. App. 2011).
That is an extraordinarily important lesson for every political faction.
Today's obnoxious protester may be protesting against you.
Tomorrow's may be you.
And Minnesota's Supreme Court Has Gone Further
In State v. Hensel, the Minnesota Supreme Court considered another portion of Minnesota's disorderly-conduct statute — one criminalizing disturbance of a lawful assembly or meeting.
The Court concluded that the provision swept so broadly into constitutionally protected expression that it violated the First Amendment.
It struck the provision down. State v. Hensel, 901 N.W.2d 166 (Minn. 2017).
That is the constitutional system functioning exactly as designed.
Government does not receive a generalized power to maintain pleasantness.
What About the Children?
This may be the most emotionally persuasive portion of Dotseth's letter.
His granddaughters were present.
We understand why a grandfather would prefer that young children not hear profanity or see vulgar gestures.
Most parents and grandparents probably would.
But there is an enormous difference between saying:
“I wish you hadn't said that in front of my grandchildren.”
and saying:
“You did not have a right to say that because my grandchildren were present.”
The former is an entirely legitimate exercise of Dotseth's own freedom of speech.
The latter would be constitutionally suspect.
The Supreme Court has repeatedly recognized government's ability to protect children in certain carefully defined contexts. But it has also rejected the notion that the presence of children creates some free-floating governmental power to censor otherwise protected expression.
In Erznoznik v. City of Jacksonville, the Supreme Court emphasized that minors possess meaningful First Amendment rights and that otherwise protected speech cannot simply be suppressed because officials believe children should not see it.
Decades later, the Court reinforced that principle in Brown v. Entertainment Merchants Association when it struck down California's attempt to restrict children's access to violent video games.
Parents possess enormous authority over what their own children watch, hear and consume.
Government does not possess the same authority over everybody else's speech.
Those are very different propositions.
The First Amendment Protects Vulgarity Too — “Powerful Medicine” for a Free Society
Perhaps no Supreme Court decision speaks more directly to this discussion than Cohen v. California, 403 U.S. 15 (1971).
Paul Robert Cohen walked through a Los Angeles courthouse wearing a jacket displaying an unmistakably vulgar four-letter political message — “Fuck the Draft” — opposing the military draft. California prosecuted him for disturbing the peace.
The Supreme Court reversed his conviction.
But the significance of Cohen reaches far beyond one profane word on one jacket.
The Court confronted a much larger question: May government suppress otherwise protected expression because it considers the language offensive, vulgar, inappropriate, or inconsistent with what officials believe should be a more respectable level of public discourse?
The answer was no.
Justice John Marshall Harlan explained the constitutional principle in language that remains extraordinarily relevant more than fifty years later:
“The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours.”
Cohen v. California, 403 U.S. 15, 24 (1971).
Those words deserve more attention than they sometimes receive.
Powerful medicine is not always pleasant medicine.
Freedom of expression inevitably produces disagreement.
It produces discomfort.
It produces anger.
It produces ideas we believe are wrong and words we wish had never been spoken.
Sometimes it produces language or gestures that most of us would never use ourselves.
Yet those consequences are not evidence that freedom has failed. They are among the unavoidable consequences of living in a nation of hundreds of millions of people possessing different beliefs, values, experiences, religions, political philosophies and opinions.
Indeed, the Court explained that free expression was intended to remove governmental restraints from public discussion and to leave the decision about which views will be expressed largely “into the hands of each of us.” The hope, Justice Harlan wrote, was that such freedom would ultimately produce a more capable citizenry while respecting the individual dignity and choice upon which our political system rests.
That principle could almost have been written for the Moose Lake encounter described by Jeff Dotseth.
On one side of the street were people associated with a lawful permit-to-carry class.
Across the street were political protesters.
People with dramatically different political viewpoints occupied the same public space.
Words were apparently exchanged.
Gestures were apparently made.
People were offended.
Children were present.
And yet none of those facts, standing alone, transforms constitutionally protected political expression into something the government may prohibit.
That is not constitutional dysfunction.
That is constitutional pluralism.
The Constitution does not require Americans to agree with one another.
It does not require them to like one another's political messages.
And it certainly does not require political discourse to satisfy some universally accepted standard of good manners before receiving constitutional protection.
The Supreme Court made that point unmistakably clear later in the same opinion. California's proposed rule, the Court explained, threatened to become essentially limitless because government would have no principled way to determine which offensive words could be prohibited and which could not.
Justice Harlan therefore offered another line that has become one of the most memorable statements in First Amendment jurisprudence:
“One man's vulgarity is another's lyric.”
Cohen, 403 U.S. at 25.
That sentence is not an endorsement of vulgarity.
It is a warning about governmental power.
Once government is permitted to decide which words are sufficiently tasteful for public discussion, there is no obvious stopping point. Today's prohibited profanity can become tomorrow's prohibited political slogan, protest sign, unpopular opinion or criticism of government.
As the Court observed, government officials simply cannot make reliable, principled distinctions in matters of taste and style. Those choices therefore belong primarily to individual citizens.
And that brings us directly back to Dotseth's concerns.
Dotseth is entirely free to believe that the protesters behaved badly.
He is free to say their language was vulgar.
He is free to criticize their gestures.
He is free to wish that his grandchildren had not heard or seen them.
He may even use his own First Amendment rights to urge Americans toward greater courtesy and civility.
But those are arguments about manners.
They are not, by themselves, arguments about constitutional protection.
There is a profound difference between saying:
“I wish you had not said that.”
and saying:
“You should not have the right to say that.”
Cohen teaches us why that distinction matters.
The Constitution does not place the vocabulary of American political debate in the hands of legislators, prosecutors, police officers, newspaper editors — or whichever citizen happens to be offended.
It leaves that choice largely in the hands of each of us.
That freedom can be messy.
It can be uncomfortable.
It can occasionally be downright ugly.
But that is precisely why Justice Harlan called free expression “powerful medicine.”
Medicine does not cease being necessary because it sometimes tastes bitter.
Neither does liberty.
The Eighth Circuit Has Said the Same Thing
Minnesota sits within the United States Court of Appeals for the Eighth Circuit.
In Thurairajah v. City of Fort Smith, an individual yelled profanity at an Arkansas state trooper from a passing vehicle.
He was arrested for disorderly conduct.
The Eighth Circuit concluded that the law was already clear: criticism of law enforcement officers — even criticism containing profanity — is protected expression. Thurairajah v. City of Fort Smith, 925 F.3d 979 (8th Cir. 2019).
Other federal courts have reached the same conclusion concerning vulgar hand gestures.
The Sixth Circuit, for example, held that giving a police officer the middle finger was protected First Amendment expression. The gesture could fairly be described as crude.
It could not fairly be described as criminal merely because it was crude. Cruise-Gulyas v. Minard, 918 F.3d 494 (6th Cir. 2019).
There is a lesson there worth remembering.
Bad manners are not automatically crimes.
The First and Second Amendments Belong to the Same Constitution
There is also something uniquely instructive about the setting Dotseth describes.
On one side of the street were people preparing for a lawful permit-to-carry class.
Across the street were political protesters exercising the freedoms of speech and assembly.
There should be nothing contradictory about that picture.
In fact, it is quintessentially American.
One group was exercising liberties associated with the Second Amendment.
Another was exercising liberties expressly protected by the First.
The Constitution protects both.
We don't get to create an à la carte Bill of Rights.
A person who treasures the Second Amendment but dislikes offensive political speech does not get to weaken the First.
A person who treasures the First Amendment but dislikes private firearm ownership does not get to pretend the Second doesn't exist.
Constitutional principle becomes meaningless when it applies only to rights we personally enjoy.
Rights Are Not Absolute — but Neither Is Offense an Exception
None of this means every statement or every action is constitutionally immune.
The First Amendment has recognized boundaries.
True threats may be punished.
Incitement intended and likely to produce imminent lawless action may be punished.
Defamation may create liability.
Obscenity occupies a separate constitutional category.
Actual fighting words can sometimes be punished.
Government can impose properly drawn, content-neutral time, place and manner restrictions.
But notice what is missing from that list:
“Somebody was offended.”
So is:
“Someone used profanity.”
And:
“Children were nearby.”
Those circumstances may matter socially.
They do not automatically erase the First Amendment.
The First Amendment Protects Dotseth Too
There is one final point that should not be lost.
Dotseth's letter itself is constitutionally protected speech.
He has every right to tell those protesters that he believes their conduct was rude.
He may call their behavior disrespectful.
He may ask them to behave differently around children.
He may publish a letter criticizing them.
And they may publish a response criticizing him.
That is not constitutional dysfunction.
That is constitutional liberty.
The answer to speech we dislike is ordinarily not government punishment.
It is more speech.
No Kings Means No Subjects
Dotseth wrote something else with which we strongly agree:
“No elected official is a king.”
Precisely.
And citizens are therefore not subjects.
Public officials work for the people.
They will sometimes be praised.
They will sometimes be criticized.
They may sometimes encounter criticism that is unfair, crude, profane or obnoxious.
A constitutional republic requires public officials to tolerate far more criticism than an authoritarian government ever would.
That isn't disrespect for America.
It is one of America's defining characteristics.
The Supreme Court expressed the principle powerfully in Texas v. Johnson, the flag-burning case: government cannot suppress an idea merely because society considers it offensive or disagreeable.
That decision protected an act millions of Americans found profoundly offensive.
The Court didn't protect it because the Justices liked flag burning.
They protected it because they understood what would happen to everyone's liberty if government received authority to decide which political expression was sufficiently respectful.
The Constitution Is Not an Etiquette Manual
We can want a more civil America.
We can model respectful disagreement.
We can teach our children not to shout profanity at strangers.
We can criticize people who do.
But we should never confuse those preferences with constitutional law.
The Constitution is not an etiquette manual.
It does not promise us freedom from being offended.
It promises something far more important:
The freedom to speak.
The freedom to protest.
The freedom to criticize government.
The freedom to disagree.
And, yes, sometimes the freedom to be rude.
Those protections do not belong to Republicans.
They do not belong to Democrats.
They do not belong to conservatives or liberals.
They don't belong to elected officials.
They belong to the American people.
And if we expect our own constitutional rights to survive when they become unpopular, we had better defend the rights of our neighbors when their exercise of liberty makes us uncomfortable.
Because the true test of our commitment to the Constitution is not whether we defend speech we love.
It is whether we defend liberty when we cannot stand what somebody has to say.