In Defense of Ambiguously Lewd Speech

Certain four letter words – and longer ones with similar connotations – just don’t have the punch they once did.

“Damn,” for example.

Clark Gable’s famous last line from Gone with the Wind  “shocked the Nation” in 1940, when former Justice John Paul Stevens of the U.S. Supreme Court was in high school. Recounting that famous line in his dissent in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), a school censorship case concerning a student’s sexually suggestive school government campaign speech, Stevens noted, “Today Clark Gable’s four-letter expletive is less offensive than it was then.”

Last week, in B.H. & K.M. v. Easton Area School District, the U.S. Court of Appeals for the Third Circuit, the federal appellate court that covers my state of Pennsylvania (plus New Jersey, Delaware, and the Virgin Islands), briefly referenced Stevens’ comment in a footnote, saying: “Fraser’s speech [the one containing sexual innuendo] might ‘seem[] distinctly lacking in shock value’ today, especially ‘from the perspective enabled by 25 years of erosion of refinement in the use of language.’ (internal citation omitted).”

B.H. is a school censorship case arising from the school district’s ban of breast cancer awareness bracelets that used a diminutive term for a part of female anatomy, i.e., “boobies.” (I have previously discussed this ban in Censoring Speech to the Detriment of Women’s Health (“Boobies” is Not a Dirty Word).) Thankfully, the Third Circuit concluded that the school district had violated the students’ First Amendment rights because the bracelets comment on a matter of social importance and the term “boobies” is not plainly lewd.

The Third Circuit developed the following legal framework to guide public school districts dealing with student speech, citing Fraser, Tinker v. Des Moines Ind. Community School District, 393 U.S. 503 (1969), and Morse v. Frederick, 551 U.S. 393 (2007):

(1) plainly lewd speech, which offends for the same reasons obscenity offends, may be categorically restricted regardless of whether it comments on political or social issues, (2) speech that does not rise to the level of plainly lewd but that a reasonable observer could interpret as lewd may be categorically restricted as long as it cannot plausibly be interpreted as commenting on political or social issues, and (3) speech that does not rise to the level of plainly lewd and that could plausibly be interpreted as commenting on political or social issues may not be categorically restricted.

So, not only does the word itself matter, but when the word is ambiguously lewd, the context in which it is used matters. The First Amendment thus protects the use of words in a school context that some people might consider lewd, so long as the supposedly lewd word is used to comment on issues of social or political importance.

I applaud the Court for protecting the students’ First Amendment rights in this case, but I am concerned about an internally inconsistent part of the opinion. In addressing the school district’s argument that affording First Amendment protection to “I heart Boobies” bracelets would unleash a “parade of horribles” like encouraging “students to engage in more egregiously sexualized advocacy campaigns” — a classic slippery slope fallacy — the Court asserts, “A school could categorically restrict an ‘I [heart] Tits! (KEEP A BREAST)” bracelet because, as the Supreme Court explained in Pacifica, the word ‘tits’ (and also presumably the diminutive ‘titties’) is a patently offensive reference to sexual organs and thus obscene to minors (emphasis added).”

I don’t see how the claim that “titties” is “patently offensive” and “obscene” can be squared with the general point made by Justice Stevens in 1986, and accepted by the Third Circuit last week, that words can become less offensive over time. When the Supreme Court determined that “Tits” was an “obscene, indecent, or profane” word that the Federal Communications Commission could censor on the air, I wasn’t even born yet. It was 1978, and I refuse to believe that 35 years of “erosion of refinement in the use of language” hasn’t affected how we would view even the diminutive form of the word, which wasn’t even at issue in Federal Communications Commission v. Pacifica Found., 438 U.S. 726 (1978) (which addressed comedian George Carlin’s “filthy words” monologue, which you can read for yourself here).

This portion of the opinion may be dicta, which means that it isn’t necessary for the holding and so isn’t necessarily binding precedent law for future cases, but it sounds like a free pass to school districts to assume certain words today are indisputably “obscene” and thus unworthy of free speech protection just because our highest court thought a similar word was offensive way back in 1978.

So, B.H. is a student speech case, but what does all of this mean for bloggers and writers who aren’t in school anymore?

Basically, this case serves as another example of why we have to careful when using profanity in our writing. This case, particularly the Third Circuit’s inconsistent approach to arguably lewd words, shows how the concept of shifting social mores is often more subtle and complicated than we immediately appreciate.

First, the use of certain words that seem expressive to us may seem simply obscene to some of our readers. I may be desensitized to such terms, but I know that my audience consists of people from diverse backgrounds, and they might not be as accepting of these terms as I am.

Second, the gratuitous use of profanity may decrease its shock value in our writing. If it’s used sparingly, the words are more likely to convey the intended emphasis.

Third, building on the first point, we don’t want our works to be banned. Profanity is one of the reasons parents and administrators often give for banning books from homes, school curricula, and libraries.

Or, fourth, maybe some of us do! There are those who believe there is no such thing as bad publicity. A book ban could end up publicizing the book to a wider audience, and a legal challenge to a ban could test how strong our First Amendment protections are for access to controversial books in public schools and libraries (the primary case on book banning in schools is 31 years old and relatively weak).

Unfortunately, though, if the challenge comes up in the Third Circuit, we might be out of luck if the word in question is “titties.” I am not offended by that word, and I think the context of how that word is used should always matter, but I may be in the minority.