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Conviction for #@*! is overturned

Cussing canoeist wins after 4-year court fight

April 2, 2002

BY NANCY A. YOUSSEF
DETROIT FREE PRESS STAFF WRITER

The fine for cursing in front of women and children was only $75, but Timothy Boomer of Roseville swore he would fight the 105-year-old law to the end.

The man whom friends still call the cussing canoeist won Monday when the Michigan Court of Appeals overturned his conviction and declared the state law banning the use of profanity in front of women and children unconstitutional.

Given the vagueness of the 1897 law, the court unanimously ruled it was concerned about how jurisdictions would enforce it, saying "allowing prosecution where one utters 'insulting' language could possibly subject a vast percentage of the populace to a misdemeanor conviction."

Boomer was canoeing in the Rifle River in Arenac County on Aug. 15, 1998, when his boat tipped over, and he began swearing. Michael and Tammy Smith of Lapeer were canoeing that day, and said their children, then ages 3 and 5, could hear Boomer's profanity.

A county deputy sheriff cited Boomer under the cussing statute that says it is illegal for any person to use indecent, immoral, obscene, vulgar or insulting language in the presence of children. The law was written in 1897 and slightly revised in 1931.

In June 1999, an Arenac County Circuit Court convicted him, and Boomer was ordered to pay a $75 fine and work four days in a child-care program. The Michigan American Civil Liberties Union then appealed Boomer's case to the appellate court, which heard arguments last month.

"It's damn good news," said Kary Moss, executive director of the Michigan chapter of the ACLU. "I think it is a statement that government should not regulate morality."

The case sparked national interest as one of the few instances in which a person fought charges of swearing in public. The county said it was looking for a way to stop visitors from abusing the properties near the river. Boomer said it tried to make an example of him and violated his First Amendment rights.

"Unfortunately for them, this example wouldn't go away," Boomer, 28, said.

Michigan is one of nine states in the nation that has such a law. The others are Louisiana, New Mexico, Oklahoma, South Carolina, South Dakota, Texas, Virginia and Wisconsin.

"The statute was tailor-made for behavior like Mr. Boomer's," said Arenac Assistant Prosecutor Richard Vollbach, who prosecuted the case.

Tammy Smith, 35, said the ruling was "sad" and sets a bad example for how people should be allowed to behave in front of children.

"If I wanted my kids to be exposed to" profanity, "I would have taken them to a bar," Smith said.

Vollbach has until April 19 to decide whether to appeal his case to the state Supreme Court.

"I think most people felt this was a good, valid law," Vollbach said. "I really do."

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