OGDEN -- The city likely will have to tread lightly as it drafts the final version of an ordinance that would ban obscene and profane language at city parks.
Experts say banning speech is almost never constitutional.
In an attempt to promote civility and ensure safety, Ogden's Recreation Division is requesting that a disorderly conduct provision dealing with language be added to the Ogden City Municipal Code and be enforced at any city-sponsored recreational event and any city-owned recreational facility.
The proposed ordinance states that "no person shall ... disturb the peace by using obscene or profane language, in any park, playground or recreational facility owned or used by the city, or at any recreational event that is organized, operated, managed or sponsored by the city."
If the ordinance is approved by the city council, it would be enforced by police. A violation would be a class C misdemeanor if the behavior continues after the offender is asked to stop.
Brigham Young University law professor Frederick Gedicks said the way the ordinance currently is written is likely too broad to withstand challenge.
"You can certainly understand why a city would want to create a safe atmosphere at their parks, playgrounds and activities, but how do you define obscenity and profanity?" he said. "It seems very broad."
Gedicks, who is widely published in constitutional law and constitutional interpretation, said the city is walking on shaky ground as it considers banning speech.
Gedicks said parks are upheld as the ultimate public forum, traditionally open for all varieties of First Amendment activities.
"If you want to prevent something like fighting, then you ban fighting and you send in law enforcement when people do fight," he said. "It's hardly ever constitutional to ban speech to prevent something else. You have to ban the 'something else.' "
But Gedicks did say that First Amendment law takes into account unwilling listeners, especially children, and noted it would be easier to institute the ban only at playgrounds.
Erika George, a University of Utah law professor who teaches courses in constitutional law, echoed many of Gedicks' sentiments.
"I think it will be an uphill battle," she said. "One of the major problems is where they are proposing this. Parks are like the Colosseum; they have always been the place where people come together. They are the ultimate place for free speech."
The city still has some time to adjust the ordinance before the council votes.
City Public Services Director Jay Lowder said the proposal is mainly intended to promote good sportsmanship and discourage fighting at city-run athletic events.
Lowder said the ordinance would give police another tool to keep confrontations from escalating at such events.
George said she thinks the intent of the proposal has some value, but there are probably better ways to stop fighting and bad sportsmanship.
"I completely understand where they are coming from, but the solution is not to ban the content of the speech.
"The focus should be more on the actual conduct they are trying to prevent."