“Alright you son of a fucking bitch. Look, you better fucking call me right away because we need to talk, immensely we need to fucking talk, quickly because I’m gonna go down there and the call …. I’m going to talk to the lady and let her know that you fucking blow because I am not paying rent here. I told you I cannot fucking afford this place. You are fucking responsible for this. I will fucking move out. We committed to a fucking year whether you like it or not we were going to be roommates. You better fucking call me or you are going to fucking reaping the fucking pain. And I know where you work too. And don’t think … you just better fucking call me.”
A client was criminally charged for making that statement above and other statements to another person that repeatedly used some form of the word “fuck.” Obviously a vulgar term but is it one that taxpayers want to invest money in the form of prosecution of someone who swears or uses profanity followed by warehousing the person in jail or put on our over-burdened probation system? Before I answer that, remember that in 2006 summit meeting in Russia, as conflict heated up between Israel and the Lebanese terror group Hezbollah, a microphone picked up a candid moment between George W. Bush and British Prime Minister Tony Blair. Syria, Bush told Blair, should tell Hezbollah to “stop doing this shit.”
It is important to recognize the evils which the regulation of profanity seeks to prevent. One major concern is the impact of profanity on children, both as subjects and objects. Few contest the legitimacy of this concern. This has not, however, provided the United States Supreme Court with a rationale for permitting general regulation of all things deemed profane. The Court has isolated the problem of the child audience though permitting the regulation of materials sold directly to children, but it has not allowed protection of the child audience to be used as a predicate for adult regulation.
Other than the potential child audience notwithstanding, the most often cited possible ”evils” of profanity are: (i) The material will move the audience to anti-social sexual action; (ii) the material will offend the sensibilities of many in the audience, (iii) the material will advocate or endorse improper doctrines of sexual behavior; and (iv) the material will inflame the imagination and excite a sexual response from the body. Kalven, Jr., A Worthy Tradition: Freedom of Speech in America 33 (1988). See also United States v. Amirault, 173 F.3d 28 (1st Cir. 1999) (questioning whether a picture evoking a sexual response from a person is a subjective or objective standard; ”should we be evaluating the response of an average viewer or the specific defendant in this case?
The first concern, although still voiced by occasional politicians and ”morality” lobbies, lacks scientific support. The second may pose a problem for captive audiences, but many times profanity regulation occurs when there is a mutual exchange between people of profane or vulgar words The third, thematic profanity, falls within the consensus regarding ”thought crimes”; unsound ideas about sex, like unsound ideas about anything else, present an evil which the law cannot regulate.
The final consideration is the evil of exciting adult sexual fantasies. There is no dispute that some such material does in fact excite the sexual imagination. Application of the societal concern and the resultant obscenity/profanity doctrine dates from an earlier day; it was stressed by such moralists as Anthony Comstock. Presumably, the underlying concern is with non-marital sex and masturbation. The question is whether this state interest is sufficient, in the case of consenting adults, to justify legislation regulating sexual expression.
In any event, the use of profanity may engender attitudes that run counter to our notions of equality, but banning profanity because of the discrimination it may cultivate runs counter to the first amendment. In Brandenburg v. Ohio, 395 U.S. 444 (1969) , for example, the United States Supreme Court acknowledged the first amendment right of the defendant, a member of the Ku Klux Klan, to engage in discriminatory speech. In so doing, the Court struck down Ohio’s criminal syndicalism statute authorizing punishment for speech that advocates ideas and which does not incite imminent lawless action. Id. at 448-49 . Similarly, in Smith v. Collin, 578 F.2d 1197 (7th Cir. 1978), the Court’s refusal to stay a Seventh Circuit decision to strike ordinances passed by the Village of Skokie, Illinois, to block a march by the American Nazi party also represents an implicit recognition that discriminatory speech, despite its unpopular message, is deserving of first amendment protection.
So in reality, the interest in profanities regulation can only rest on imposing some sort of uniform moral code on society. In other words, from my client above, the word “fuck” was singled out for regulation because our society uniformly forbids it use. Hmmmm…..really?
Just as making the well-known middle finger gesture is no longer obscene or illegal, “fuck” is a more commonly used and accepted term in today’s twenty-first century society than it was in the past. Coggin v. State, 2003 Tex. App. LEXIS 8678, (memorandum decision October 9, 2003). Use of the word “fuck” “has been accepted in R-rated movies (and occasionally in PG-13 movies, though not often). Since the 1970’s, the use of the word Fuck in R-rated movies has become so commonplace in mainstream American movies that it is rarely noticed by most audiences.” Id. Some movies such as Scarface, Porky’s and Goodfellas are known for the extensive use of the family of “fuck” words (fuck, fucking, fucker, fuckface, fucked, absofuckinglutely, etc.) and in the non-US version of the comedy Four Weddings and a Funeral, Fuck is the chief word and repeatedly uttered during the first five minutes of the film. Id. Pulp Fiction was nominated for seven academy awards and took home the Oscar for best screenplay with its zealous and gratuitous use of Fuck phrases. It would be far fetched to argue that the fuck and variations thereof has not made its way into mainstream society.
In the world of performing arts, “fuck” and its many variants are not limited to Hollywood and the big screen. George Carlin, a well known and admired American comedian, for years has based his act on the use of the more colorful words in the English language, including extraordinarily large amounts of “fuck” phraseology. In fact, one of the most well known comedic skits in American history is George Carlin’s “Seven Dirtiest Words,” two of which are “fuck” and “motherfucker.” Andrew Dice Clay, Eddie Murphy, Chris Rock, Robin Williams and countless others have used the Fuck family to entertain audiences across the land, enriching their lives with the entertainment and comedic value of Fuck and its progeny.
The word “fuck” can be heard almost anywhere at anytime, not just at your local movie theatre or comedy club. Numerous other mainstream and well-respected artists have used the family of “fuck” words in their music and performances. The Rolling Stones (who have nine number one albums, thirty-four top 10 albums and thirty-eight gold/platinum albums) have used the word in numerous recorded songs and hoards of additional live performances. Other popular musical artists such as Eminem, Lenny Kravitz, Tupac Shakur, Kid Rock, Busta Rhymes, 311, Bad Religion, Beck, Dr. Dre, Blink 182, Spleen Dingo and Everlast have actually titled songs that contain some variation of the word “fuck.” For a complete listing of at least 417 song titles containing a member of the “fuck” variations, one need only access to a computer to visit the non-pornographic site inlyrics.com. Literally millions of “fucking” recordings have been distributed by national recording artists, who are backed by national record labels, who seem not to have a problem proliferating this prolific word and its closely related cousins. Counsel knows of no record label or record label executive that has been prosecuted for titling a band, a song or an album with a member of the “fuck” family. In fact, an agency of the United States Government, the Federal Communications Commission (FCC), declared in October that “Fucking Brilliant” (as stated by Bono of the musical group U2 at the live telecast of the Golden Globe awards in January) to not be obscene. Shepherd Express (October 30-November 5, 2003) p. 61.
From “Fa” (a syllable used to represent the fourth tone of a major scale or sometimes the tone F) to “Fytte” (archaic version of Fit), there are roughly eight thousand six hundred words in the English language that begin with the letter F. Webster’s 3rd New International Dictionary of the English Language, Unabridged, pp. 811-926, (1986). Fuck has the unique distinction of being the only word commonly known as the F word. Fuck is so popular that the well-respected national publisher Random House Books in 1999 published a 272-page book entitled “The F Word”. Coincidentally, Random House also happened to be 1999’s number one ranked distributor of children’s books. “The F Word” is readily available at the world’s largest online bookseller, Amazon.com, or your local Barnes and Noble bookseller for around fifteen dollars.
A search of Internet web sites suggests “fuck” is a more commonly used word than mom, baseball, hot dogs, apple pie, and Chevrolet. Google Search Engine at Google.com. The following table depicts the number of internet search engine hits for “fucker” and “fucking” statements as compared to “fuck” itself and other commonly heard words or phrases. All results are approximate.
Approximate number of hits
Freedom of Speech
Sticks and Stones May Break My Bones
“Fuck” has distinct meanings based on the context in which it is used. When formally defined:
a. “FUCK, n, 1680
1. usually obscene: an act of copulation
2. usually obscene: a sexual partner
3. usually vulgar: DAMN
4. usually vulgar: used especially with the as a meaningless intensive <what the fuck do they want from me>”
Merriam-Webster’s Online Dictionary, www.m-w.com (emphasis in original)
b. The Cambridge English Readers Online Dictionary adds more zest to the definition of fuck and fucking (emphasis in original):
“fuck (EXTREME ANGER) exclamation offensive
used when expressing extreme anger or annoyance, or to add force to what is being said:
Fuck — the bloody car won’t start!
Shut the fuck up!
Who the fuck does she think she is, telling me what to do?
fucking adjective, adverb offensive
used to emphasize a statement, especially an angry one:
What a fucking waste of time!
He’s a fucking idiot.
He’d fucking well better do it.”
“Fuck” possesses incredible versatility. It can be a noun (“you fuck”), a verb (“everything Billy touches, he fucks up”), and adjective (“I’m really fucking broke”), an adverb (“I’ve been fucking drinking too much”), an exclamation (“holy fuck, Batman!”) or question (“what the fuck?”). This versatility could partially explain the prevalence of the word and why it is so readily available to anyone with access to a computer, VCR, CD player, eight-track recorder, DVD player, phonograph, cassette deck or Blockbuster Video outlet. It may explain why Fuck can be used in almost any sentence at any time no matter what the circumstances and why the word has become almost commonplace in United States culture and society.
Please note the religious overtones of the government regulation of profanity. Profanity is by definition “contempt or irreverence for what is sacred.” And so who is to say what is sacred? Politicians? Preachers? The Parents Television Council? Or parents? Your friends?
All I know is that I do not want the government to sit as America’s latter-day ecclesiastical court and nanny or official cultural critic. For instance, the FCC penalized a public TV documentary, The Blues: Godfathers and Sons, which had hip-hop legend Chuck D (of Public Enemy) and Marshall Chess (son of Leonard Chess and heir to the Chess Records legacy) explore the heyday of Chicago blues along with contemporary hip hop musicians for its subjects’ language. Yet the commission earlier made exceptions for the Steven Spielberg films Saving Private Ryan and Schindler’s List. So when black musicians say bad words, it is a crime. I guess the government believes when white people use profanity in war, it is art.
I guess that is what bothers me often with criminal prosecutions, in particular prosecution for profanity. Many times who does the act will determine if someone will be prosecuted. For instance, I do not know if President Bush ever faced prosecution for using profanity. It is not that President Bush said “shit” that bothers me, it is that if someone else other than President Bush said “shit,” they face criminal prosecution.