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04.02.02

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TRAVERSE CITY, Mich. — The Michigan Court of Appeals yesterday struck down a 105-year-old law against using vulgar language in front of women and children, throwing out the conviction of a canoeist who let loose a stream of curses after falling into the water.

A three-judge panel ruled in favor of Timothy Joseph Boomer. An Arenac County jury had found him guilty in 1999 of swearing after tumbling into the Rifle River.

He was fined $75 and ordered to work four days in a child-care program, but the sentence was put on hold while the case was appealed.

Enacted in 1897 and slightly reworded in 1931, the law says anyone using "indecent, immoral, obscene, vulgar or insulting language in the presence or hearing of any woman or child shall be guilty of a misdemeanor."

The appeals panel said it would be "difficult to conceive of a statute that would be more vague," and that it violated the First Amendment guarantee of free speech.

"Allowing a prosecution where one utters 'insulting' language could possibly subject a vast percentage of the populace to a misdemeanor conviction," the written opinion said. Boomer, 28, of Roseville, said he was relieved.

"I think freedom of speech is very important," he said. "It was a very worthy cause to fight for."

His trial attorney, William Street of Saginaw, said lower courts should have tossed out the case.

"But at least the Court of Appeals ruling ... makes it clear for all counties and all prosecutors, and no one will be caught in the circumstances of Mr. Boomer again," Street said.

Richard Vollbach, the Arenac County assistant prosecutor who handled the case, said he was surprised and would consider appealing the case to the Michigan Supreme Court.

"If it was a rationale I could digest, I'd probably leave it alone. But this one's a little bothersome to me," he said.

Boomer was canoeing with friends in August 1998 on the river, which winds through rural Arenac and Ogemaw counties before emptying in Lake Huron about 130 miles north of Detroit.

Witnesses testified Boomer fell out when his canoe struck a rock. A man who was in a nearby boat with his wife and two young children testified Boomer yelled curses for several minutes as they hurried away.

A sheriff's deputy who ticketed Boomer said he could hear the shouts a quarter-mile downstream.

Boomer acknowledged to reporters he "might have" uttered a profanity two or three times.

During the trial, District Judge Allen Yenior ruled unconstitutional the ban on cursing in front of women but left intact the provision dealing with children. A circuit judge upheld Yenior's decision.

The appeals court ruling, signed by Judges William Murphy, David Sawyer and Joel Hoekstra, said the law did not make clear what words were prohibited. Applying the ban only to language a "reasonable person" should know is profane wouldn't fix the problem, they said.

"This ... would require every person who speaks audibly where children are present to guess what a law enforcement officer might consider too indecent, immoral, or vulgar for a child's ears," the judges wrote.

Vollbach said many laws have similar wording. For example: A person who uses "abusive, profane or indecent language" on a train can be taken into custody or kicked off.

"That's almost identical ... and no one's suggesting it's vague," he said.

The appeals court decision does not leave society defenseless against obnoxious public behavior, said Michael J. Steinberg, legal director of the Michigan chapter of the American Civil Liberties Union, which handled the Boomer case.

"There are plenty of constitutional means ... to regulate improper conduct," such as noise ordinances and laws against public drunkenness, Steinberg said. "But you cannot act as speech police."

Boomer, who said many people still know him as the "cussing canoeist," is taking no chances.

"I'm a little more careful about what I say in public these days," he said. "I don't think I'll ever live it down completely."