BOB GARFIELD:

The Super Bowl drew more than 100 million viewers last week but, as often happens, many of the most memorable moments weren't during gameplay. First, singer MIA briefly flipped the bird to thousands of fans and everyone at home during the halftime show —

[MIA SINGING/BLEEP] [SINGING UP & UNDER]

NBC apologized. Then after the game, Gisele Bundchen, supermodel wife of quarterback Tom Brady, was overheard using the "F" word on her way out of the stadium. She didn't apologize.

For criminal lawyer Mary Prevost, the Super Bowl hijinks were a source of some satisfaction. In October 2010 one of her clients, an off-duty cop named Eric Holguin went to a football game in San Diego, where the hometown Chargers were playing against his beloved Arizona Cardinals. Holguin, sporting Cardinals colors, was repeatedly sworn at by Chargers fans, a pair of whom even attempted to pick a fight. Holguin said, no thanks, punctuated with an expletive, the expletive, "F-U." All three men were ejected from the game but soon after Holguin who was waiting outside for his wife was charged with resisting arrest and assault.

Now he's suing the City of San Diego on grounds that the First Amendment protects his right to swear at other fans, or anyone else. We're joined by his lawyer Mary Prevost. Mary, welcome to On the Media.

MARY PREVOST:

Thank you for having me.

BOB GARFIELD:

Now, I have to tell you, Mary, I have a more than passing interest in this story. Mrs. Garfield is from a strange and distant land, and she has strange customs, and the first time I went to a baseball game with her we were behind the home dugout, and she started screaming at the umpire [TONE] the judge, [TONE] the judge —

[PREVOST LAUGHS]

— which made me worried that she was gonna be arrested.

MARY PREVOST:

Yeah.

BOB GARFIELD:

Is there not case law that says that —profanity is not necessarily protected speech in a public place?

MARY PREVOST:

No. What they can limit is bad behavior, assaultive behaviors. But as far as your speech goes, unless it's something that's likely to incite a riot, then they can't regulate it in a public forum.

BOB GARFIELD:

Now, there is a Supreme Court case which gives an exemption to free speech for so-called "fighting words" —

MARY PREVOST:

Sure.

BOB GARFIELD:

— profanity that is destined to result in fisticuffs. Tell me how the fighting words test applies to this case.

MARY PREVOST:

Well, it really doesn't because what really incites violence may be words plus actions. Now, I would think if someone said something very personal about say, your wife, [LAUGHS] that might be fighting words and, and maybe that's not protected, but there are numerous court cases and law review articles that have pretty much said, "F-U" is just so common in our vernacular that it really doesn't mean anything anymore; it's not obscene and it's really not a fighting word.

BOB GARFIELD:

Your client, Eric Holguin, he's an L.A. policeman. Have you asked him if he ever arrested anyone for disorderly conduct for using that expression at him?

MARY PREVOST:

I never have. But it would be an illegal arrest because you're allowed to say "F-U" to a police officer on the street, so long as you don't walk up and assault him.

BOB GARFIELD:

Wait, wait, wait, wait. I'm allowed to just willy-nilly walk up to a cop and — say that phrase, without fear of consequences?

MARY PREVOST:

Oh, I didn't say that you wouldn't get retaliated against by the officer. But if you're driving by and you see a police officer on the street, you can yell out "F-U" to him. There's nothing he can do about it.

BOB GARFIELD:

At the Super Bowl a week ago, an entertainer, MIA, during the halftime show, flipped the bird at not only [LAUGHS] the assembled fans but, you know, maybe a billion around the world. Did you, by any chance, get up and do a jig at the delicious timeliness of this episode for your case?

MARY PREVOST:

You know, I was more excited when Gisele Bundchen used the F word. She was upset and was blaming, apparently, some of the receivers, and everybody heard that Gisele was using the F word. And it went viral and I said, this is perfect for us.

BOB GARFIELD:

[LAUGHS] What's gonna happen?

MARY PREVOST:

The case law is really clear that you can't limit certain speech. It has to be, like you said, fighting words. So I think what will happen is eventually the city, if they're smart, will just settle the case. I'd love to go to trial on it though. I would love to go to trial on it.

BOB GARFIELD:

One more thing. If, if a person's arrested incorrectly, under the law, and the arrest leads into a spiral of other unpleasant events, that might include resisting arrest, assault and battery, is the arrestee any less responsible for his conduct under a bad arrest than they would be under a good one?

MARY PREVOST:

Yeah. You have the absolute right to resist an unlawful arrest. So if whatever precipitated the arrest was wrongful, to begin with, then what flows from there as far as charges go, generally speaking, should be thrown out.

BOB GARFIELD:

So I'm safe to take my wife to a ballgame again?

MARY PREVOST:

Well, now hold on. I didn't say that these stadiums are going to be following the law, right? Look what they did with Mr. Holguin. You know, you might tell your wife to settle down a little bit until we've got a — an absolute ruling from a Federal court.

BOB GARFIELD:

I got to tell you, that has not worked.

MARY PREVOST:

Well then, keep me on retainer, okay? [LAUGHS]

BOB GARFIELD:

[LAUGHS] Mary, thank you very much.

MARY PREVOST:

Thank you.

BOB GARFIELD:

Mary Prevost is a criminal defense attorney in San Diego, California.