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THE NEW PROFANITY
by
Steven R. Finz
This article first appeared in
"Verbatim, The Language Quarterly," Autumn 2000 issue
Only a few decades ago, no person of culture would use the fword in polite company. Now, although even our courts have stopped shrinking from public pronunciation of the word "fuck," all America heard O.J. Simpson's defense lawyer ask witness Mark Fuhrman if he had used "the nword" any time in the past ten years. Ironically, Fuhrman's answer was "No. Never." Have ethnically offensive terms become the only dirty words left to our society?
America holds a traditional belief in the benefits of free expression. United States Supreme Court Justice Felix Frankfurter wrote that one of the prerogatives of American citizenship is the freedom to speak "foolishly and without moderation."1 Our Courts have a long history of protecting this foolishness and lack of moderation, even where racially offensive language is concerned.
In 1949, for example, the United States Supreme Court held that the state of Illinois could not prohibit a speaker from publicly referring to Jews as communistic zionists and declaring that he didn't want them here, but wanted them to go back where they belong.2 Twenty years later, the high court said that the state of Ohio could not stop a speaker at a Ku Klux Klan rally from standing near a large burning cross wearing a hood, and saying, "Personally, I believe the nigger should be returned to Africa, the Jew returned to Israel."3 Eight years after that, it proclaimed that Nazis could freely march through the streets of the predominately Jewish community of Skokie, Illinois, wearing uniforms and displaying swastikas.4
In 1971, the same protection was extended to words generally considered to be vulgar. That battle began in the corridors of a California Municipal Court, although it was inspired by a different kind of battle that was taking place in Viet Nam. On April 26, 1968, Paul Robert Cohen walked through a Los Angeles County Courthouse, in the presence of women and children, wearing a jacket bearing the words "Fuck the Draft" plainly emblazoned on its back. When Cohen entered a courtroom, he removed the jacket and draped it over his arm. A court officer asked the judge who was sitting at the time to hold Cohen in contempt, but the judge refused, since no offense had been committed in his presence. So the police were called. Cohen was arrested and convicted of violating a California law that prohibited disturbing the peace.
Cohen claimed that he had a constitutional right to express his sentiments about the war and the selective service system, and that the conviction violated that right. The California Court of Appeal disagreed.5 In an opinion written by Justice Alarcon, the court described the language on Cohen's jacket as offensive and below the "minimum standard of propriety and the accepted norm of public behavior." The court said that the expression Cohen chose to display was one usually not used publicly to espouse a philosophy, and that he must have been aware that his behavior would vex and annoy a substantial portion of his unwilling audience. Justice Alarcon thought it was reasonably foreseeable that Cohen's use of the f-word would cause others to rise up and commit violent acts against him to prevent him from subjecting women and children involuntarily to his unprintable language. The court noted that "fuck" is one of the most notorious four-letter words in the English language and that it had yet to gain sufficient acceptance to appear in any standard lexicon, other than Partridge's "A Dictionary of Slang and Unconventional English," in which its second letter was replaced by an asterisk. In conclusion, the court said that, while Cohen had a right to speak out against the draft, this did not include the right to express his views by means of lewd and vulgar language.
Cohen tried to appeal to the California Supreme Court, but it denied review, apparently satisfied with Justice Alarcon's decision. So he went to the United States Supreme Court, which granted certiorari, thus agreeing to hear the case. Justice Harlan, who wrote the court's opinion, began by saying that the case was more important than at first blush it appeared.
Harlan said that since the expression on Cohen's jacket was directed at an institution, rather than any specific person, no individual reasonably could have regarded it as a direct personal insult or have been inspired to violence by it. Similarly, he said, there was no evidence that substantial numbers of citizens were standing ready to strike out physically at Cohen for assaulting their sensibilities. He added that the fact that there might be some persons with such lawless and violent proclivities would be an insufficient base upon which to erect a governmental power to force dissidents into avoiding particular forms of expression, calling it a self-defeating proposition that to avoid physical censorship by the violent and lawless, the state may effectuate that censorship itself. Those who didn't like seeing the word on Cohen's jacket could simply avert their eyes.
Justice Harlan recognized that much linguistic expression conveys inexpressible emotions as well as precise ideas, and that words are often chosen as much for their emotive as their cognitive force. He added that while "fuck" may be more distasteful than other words, it is often true that "one man's vulgarity is another's lyric." Since governmental officials cannot make principled distinctions in this area, he said, the Constitution leaves matters of taste and style to the individual. In conclusion, he wrote that the constitutional right of free expression is powerful medicine that may at times fill the air with verbal cacophony; this is not a sign of weakness but of strength, because it implicates fundamental societal values.
To some extent, Justice Harlan was relying on a legacy left by Supreme Court Justice Oliver Wendell Holmes, who half a century earlier had added the phrase "free trade in ideas" to the judicial lexicon.7 In commenting on freedom of speech, Holmes wrote that "... the best test of truth is the power of the thought to get itself accepted in the competition of the market." In other words, the way to fight a bad idea is with a good idea. He warned against attempts to prevent the expression of opinions, even those that we loathe, unless they so imminently threaten lawlessness that an immediate check is required to save the country.
The First Amendment provides that Congress shall make no law abridging freedom of speech or of the press. The Fourteenth Amendment has the effect of imposing the same prohibition on the states. These freedoms of expression are not absolute, but there is a very finite and specific list of exceptions. Laws may prohibit conduct that appears expressive, but does not convey any message and so is not speech.8 Obscenity has been placed in this category.9 Other exceptions have been made for personally abusive epithets, known as "fighting words," that are inherently likely to provoke violent reactions;10 for words likely to provoke a given group to hostile reaction;11 and for methods of expression that intrude into the privacy of the home.12
While laws may prohibit the acts on that list, they cannot prevent those acts from taking place, except in some very special circumstances. The difference between punishing prohibited expression and restraining it in advance is important, because a message that has been restrained is withdrawn before ever being communicated. For this reason, governmental attempts at prior restraint of expression are subject to a very high level of scrutiny by the Supreme Court.
In 1963, the Court said that attempts to restrain expression in advance are presumed to be unconstitutional and are permitted only in exceptional cases.13 A list of exceptions created by the Supreme Court in 1931 included language during wartime that obstructs the recruitment system, or informs the enemy about the sailing dates of transports or the number and location of troops; obscene publications; and incitements to imminent acts of violence, or to the violent overthrow of orderly government.14
The Constitution of the state of California expressly recognizes the distinction between punishment for prohibited expression and prior restraint of expression. It provides:
Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.15
Historically, California courts have put this principle into effect by imposing civil liability for the use of ethnic epithets in the workplace. The legal theory used for this purpose is known as intentional infliction of emotional distress. It makes a defendant liable for committing an outrageous act, calculated to cause severe mental suffering, which does cause such suffering. In general, conduct is not regarded as outrageous unless it exceeds all bounds tolerated by decent society. Motivated by considerations of free expression, courts have said that insulting language ordinarily does not qualify.16
In 1970, however, the California Supreme Court carved out an exception for racial slurs in the workplace. Manuel Alcorn, a black man, served as union shop steward in the company where he was employed. One day, after he gave advice to a union member, his employer called him a "goddam nigger." Alcorn sued for intentional infliction of emotional distress, but the trial court dismissed his case, based on the long-standing rule about insulting language.
The state Supreme Court reversed, however, permitting Alcorn to recover damages from his employer.17 In doing so, the Court noted that blacks are known to be extremely sensitive to the particular word that had been used, and that knowledge of this sensitivity made its use in the workplace outrageous. The decision said that the slang epithet "nigger" may once have been in common usage, along with such other racial characterizations as "wop," "chink," "jap," "bohunk," or "shanty Irish," but that it had become particularly abusive and insulting in light of recent developments in the civil rights' movement.
Subsequently, the California legislature passed the Fair Employment and Housing Act (FEHA), which prohibits racial discrimination in employment.18 Under the authority of this law, many employees have received damages for emotional distress they sustained as a result of abusive language in the workplace. Recently, however, the California courts took the protection of minority workers to a new level.
In Aguilar v. Avis,19 seventeen Latinos employed by Avis as lot workers and car transporters sued their employer under the FEHA, claiming that their supervisor, John Lawrence, routinely called them "motherfuckers" and other derogatory names, demeaning them on the basis of their race, national origin and lack of English language skills. After awarding damages, the trial court issued an injunction directing Lawrence to "cease and desist from using any derogatory racial or ethnic epithets directed at, or descriptive of, Hispanic/Latino employees of Avis ... as long as he is employed by Avis," The court also ordered Avis to prevent Lawrence from committing such acts.
Avis appealed, arguing that the injunction was a prior restraint of speech that violated First Amendment guarantees of freedom of expression. The California Court of Appeal affirmed the issuance of the injunction in a decision that used the word "motherfucker" twelve times, but did not use any of the other epithets. Justice King, who wrote the opinion, said that he had no idea why Lawrence called the plaintiffs motherfuckers, recognizing that the word has no special meaning pertaining to job performance and quoting the New Dictionary of American Slang which defines it as "a detestable person."20
The Court admitted that it did not know what else Lawrence called the Latino employees because neither side had seen fit to inform it. Although Justice King read a newspaper article suggesting that the word "wetbacks" had been used, along with other "racial epithets in Spanish," he could not accept that information as true, since it was not part of the judicial record. Acknowledging that racist epithets may "express a discriminatory idea or philosophy," that of racial supremacy, he said that this was not enough to protect their use in the workplace.
The court said it would prefer an injunction like one issued by a federal court in New York that specifically listed the words county corrections officers could not use when addressing prisoners: "nigger," "polack," "kike," "spic," "guinea," "honky," "mick," "coon," and "black bitch."21 It was willing, however, to accept the vaguely worded language the trial court had used, saying that the phraseology involved was not technical or arcane, but was plain English. On the other hand, because the injunction also applied to speech outside the workplace, the appellate court said that it went too far and directed that it be modified.
Avis went to the California Supreme Court, where, once again, the injunction was affirmed. Chief Justice George, who wrote the majority opinion, compared the utterance of racial epithets in the workplace to treason committed by telling the enemy the Nation's defense secrets, because in both cases, speech is swept up incidentally by a statute directed primarily at conduct. As to Avis's protest that an injunction against the future use of racial epithets was an invalid prior restraint of speech, the Chief Justice said that since the words already had been determined to result in employment discrimination, it was not unconstitutional to prohibit their further utterance. In conclusion, he said that the pervasive use of racial epithets in the workplace is not protected by the First Amendment.
Two justices dissented on technical grounds, but only one objected to the substance of the majority's decision. Janice Brown, a well-known conservative and the Court's only black justice, said it was a bedrock principle underlying the First Amendment that the government may not prohibit the expression of an idea simply because society finds it offensive or disagreeable. Sardonically, she added, "that is, until today." She expressed the fear that, if applied generally, the new rule would create an exception that would eventually swallow the First Amendment. She pointed out the danger of prior restraint, because it does not merely place a burden on the speaker's ability to communicate a message, but erases the message before its effects can be assessed.
Justice Brown was particularly disturbed by the fact that the Court did not know exactly what Lawrence said, how often he said it, or what the surrounding circumstances were. Commenting on the changing nature of political correctness, she noted that every age has some ideas that are fashionable and some that are disfavored. She said that the standard created by the court "turns the world on its head," because it holds, in effect, that the Legislature, acting in response to current popular sentiments, can declare certain ideas to be bad, and once a thought is determined to be one of these bad ideas, courts can prohibit anyone from expressing it.
Making a thinly veiled reference to McCarthyism, she noted that in the early part of this century, the public was particularly thin-skinned about communism, but that the United States Supreme Court struck down all attempts by state courts to censor the dissemination of communist ideas. In conclusion, Brown wrote:
Speech is unpleasant sometimes. It may be disgusting. It may be offensive. Contrary to the nursery rhyme, it may even be injurious. But ... a government that tells its citizens what they may say will soon be dictating what they may think. ... We are all the beneficiaries of the freedom the Constitution guarantees, and we all pay its costs, even though the price may sometimes be anguish.
Armed with Justice Brown's dissent, Avis petitioned the United States Supreme Court for certiorari, but the request was denied.22 In effect, this means that the nation's highest court refused to hear the case and was willing to accept the California decision. The only dissenting voice was that of Justice Clarence Thomas, like Brown a conservative and the Court's only black justice.
Thomas said that to uphold application of the FEHA to pure speech would substantially modify existing First Amendment jurisprudence. Even assuming that the law could validly impose liability for the use of ethnic epithets in the workplace, he believed the injunction was flawed in at least three respects: first, because it prohibits even a single utterance of a prohibited word; second, because it was not necessary, since the threat of further damage awards probably would discourage further use of the offensive language; third, and most important, because the injunction contains no exception for speech that might contribute to reasoned debate.
The views of dissenting justices give heart to those who disagree with the majority, but have no legal effect. The decision of California's Supreme Court stands. It may be distasteful to call an employee a motherfucker, but it is not illegal. On the other hand, an employer who uses the n-word, or who permits the use of "any derogatory racial or ethnic epithets," in violation of an injunction may be imprisoned for contempt of court. Ethnic slurs have truly become the new profanity.
Footnotes:
1. Baumgartner v. United States, 322 U.S. 665, (1944).
2. Terminiello v. Chicago, 337 U.S. 1 (1949).
3. Brandenburg v. Ohio, 395 U.S. 444 (1969).
4. National Socialist Party v. Skokie, 432 U.S. 43 (1977).
5. People v. Cohen, (Cert.Grtd) 1 Cal.App.3d 94 (1969).
6. Cohen v. California, 403 U.S. 15 (1971).
7. Abrams v. United States, 250 U.S. 616 (1919).
8. United States v. O'Brien, 391 U.S. 367 (1968).
9. Roth v. United States, 354 U.S. 476 (1957).
10. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
11. Feiner v. New York, 340 U.S. 315 (1951); Tinker v. Des Moines Indep Comm Sch Dist, 393 U.S. 503 (1969).
12. Rowan v. Post Office Dept., 397 U.S. 728 (1970).
13. Bantam Books v. Sullivan, 372 U.S. 58 (1963).
14. Near v. Minnesota, 283 U.S. 697 (1931).
15. California Constitution, Article 1, Section 2 (a).
16. Newby V. Alto Riviera, 60 Cal.App.3d 288 (1976).
17. Alcorn v. Anbro Engineering, 2 Cal.3d 493 (1970).
18. California Government Code sections 12960 et. seq.
19. Aguilar v. Avis, (Rev.Grtd) 45 Cal.App.4th 933 (1996); 21 Cal.4th 121 (1999).
20. Snell v. Suffolk County, 611 F. Supp. 521 (EDNY - 1985).
21. New Dict. of American Slang (1986) p.283.
22. Avis v. Aguilar, ___ U.S. ___, 120 S.Ct. 2029 (2000).
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