In Defense of Ambiguously Lewd Speech

Portion of CaptionCertain 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.

15 thoughts on “In Defense of Ambiguously Lewd Speech

  1. Pingback: Censoring Speech to the Detriment of Women’s Health (“Boobies” Is Not a Dirty Word) | The Misfortune Of Knowing

  2. This reminds me of New York based Transgender Bathroom Bill for the use of the opposite bathroom for transgender individuals. http://www.nyfrf.org/issues/proclaiming-justice-and-mercy/item/43-transgender-rights-trump-privacy-concerns-under-proposed-legislation
    I think even though it is probably a civil rights issue, that it is ripe for misuse. Teenagers will have a field day with pranks. This is the same with the use of many four-letter words now considered punishable in the school system, like getting expelled or suspended for wearing them on a T-shirt emboldened with them.

  3. STF

    It’s a tough call. Ambiguously lewd words can be a problem when young kids are in the audience. Kids might not understand it and then use it out of context. It’s one of those topics that I go back and forth on, especially now that I’m a parent. I wouldn’t want my kids coming home saying tits, but I don’t think titties is as bad.

    1. Yeah, I don’t like my children exposed to certain words before they are old enough to understand the history and impact of those words (racial epithets, for example), but I wouldn’t have a “categorically restricted” list. The context in which a word is used should always matter, even for words the Court feels are “plainly lewd.”

  4. Interesting post. I often wonder about some authors overuse of expletives likely intending to cause shock but as you stated, if overused, lose their value. As a writer, I very much believe in valuing words and very much limit expletives and other crude/lewd language in my own writing. If one does come up I want it to have significant meaning in its use. But that’s my style and I respect the choices of others. However, one must consider, as you also stated, the limiting effect on one’s audience with choice of words.

    Thanks for the post. Good food for thought.

    1. Thanks! I always have to remind myself that other people aren’t as desensitized to certain words as I am. I also try to be careful because I don’t want my kids picking up these words until they’re old enough to know how/when to use them.

  5. Is this an American thing AMB? I may be wrong but I’m sure the British police or civil courts don’t concern themselves with obscene language unless it’s usage is clearly disturbing the peace.
    It must be a difficult area of law. Attitudes and definitions change from generation to generation. We’re in a fairly prudish time, intolerant of many things whereby most anything went in the 60s/70s.

    1. In the US, we have a fairly strong religious culture and relatively strong views on parental rights. So, most challenges to profanity, particularly words with sexual connotations, come up in schools and at libraries where parents want to be able to control the messages their children hear. Sometimes school administrators act without any complaints from parents on the assumption that certain words just aren’t “age appropriate.” So, it isn’t something the police would get involved in, and the civil courts get involved only when someone challenges the removal of a book (or other item, like breast cancer awareness bracelets) on First Amendment grounds.

      By the way, speaking of UK/US differences, I read on Hannah’s blog that author Matthew Dicks publishes under a different surname in the UK because, as he writes on his blog: “While Dicks might be an amusing name in the United States, it is apparently quite offensive in England.” http://whathannahread.wordpress.com/2013/07/29/memoirs-of-an-imaginary-friend-by-matthew-green/ (Hannah links to Matthew Dicks’ blog post).

      1. I see, thanks for elucidating. I don’t know where Matthew Dicks gets the idea that Brits would be offended or put off by his family name. It might raise a snigger among five year-olds but it is, in fact, fairly common.
        I’m amused to see that my one foul-mouthed character in my second novel has me in ‘adult fiction’ in our local library, though also in ‘local history’ 🙂

        1. Yeah, I thought the US and the UK had a similar perception of the word “dicks.” Thanks for confirming it! I kind of like that Green is the “maiden” name of Dicks’ wife, though. I’m not a fan of our custom of wives assuming their husbands’ names all the time.

          It’s interesting that your second novel would be in the “adult fiction” section because of a foul-mouthed character. Is Barry in a different section?

          1. They don’t have ‘Barry’ (must fix that) but ‘Tess of Portelet Manor’ resides in ‘local history’ only and hasn’t been categorised as fiction at all ❓ Maybe they think it’s real.

    1. Yes, I think context is everything. It’s very concerning that certain words can just be “categorically restricted,” even after 35 years of “erosion of refinement in the use of language.”

I appreciate your comments (respectful dissent is welcome)!

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