Holy Sh*t: A Brief History of Swearing (34 page)

In the United States in the 1940s, some swearwords were legally recognized as having a power in excess of their literal meaning, much as oaths possessed six hundred years ago. These “fighting words” are so offensive that they “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” and as such are not protected by the First Amendment.

The fighting-words doctrine
was articulated in a 1942 U.S. Supreme Court case,
Chaplinsky v. State of New Hampshire
. Walter Chaplinsky was a Jehovah’s Witness proselytizing in Rochester, New Hampshire. He stood on a public sidewalk, attacking organized religion as a “racket,” and attracting a large, generally hostile crowd. When the town marshal warned him that the crowd was getting restless, Chaplinsky shouted, “You are a God damned racketeer” and “a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists.” He was promptly arrested.

Chaplinsky sued because he felt that the arrest violated his right to freedom of speech, his constitutional right to criticize organized religion and call people fascists. The Court disagreed, exiling his words to the ghetto of unprotected speech along with “the lewd and obscene, the profane, and the libelous”—the kinds of language that can be regulated by Congress. “Resort to epithets or personal abuse,” the high-minded judges unanimously declared, “is not in any proper sense communication of information or opinion safeguarded by the Constitution.”

This decision led to great confusion in the lower courts about exactly what counts as a fighting word and thus could be illegal, and what is merely offensive speech and thus protected. Chaplinsky himself questioned whether “damned Fascist” was “bad” enough to be a fighting word; the Court countered that the determining factor is “what men of common intelligence would understand would be words likely to cause an average addressee to fight.” If someone called me a fascist today in über-liberal Cambridge, Massachusetts, I would be more bemused than insulted, but in the middle of World War II in small-town New Hampshire, the word was probably much more directly relevant and offensive. Still, it seems that Chaplinsky had a point. One need only look at some lower-court cases to see that men (and women) of common intelligence are nowhere near to agreement.

In 2006,
Connie Watkins screamed
at city employees who were pruning trees in front of her house, “Fuckin’ treetrimmers you’re butchering my trees.” Four years later the Arkansas appeals court determined that these words were fighting words, upholding her arrest for disorderly conduct.
Fuck
is not automatically a fighting word, though.
When a police officer asked
John Kaylor to move his truck, which was blocking an alley, Kaylor called him a “fucking asshole” and refused to move the vehicle. A court in Ohio decided that these were
not
fighting words—police officers are legally supposed to exercise more restraint than private citizens and so should not react to the provocation of insults. If you’re going to call someone a “motherfucking bastard,” choose a police officer, not a gardener. On second thought, don’t. The officer and his partner took Kaylor out with pepper spray and arrested him, even though Kaylor’s swearing was constitutionally protected.

In Michigan, Thomas Leonard
was arrested for referring to “a God damn lawsuit” at a town meeting. (Coincidentally, the lawsuit was his, and he was suing the police department.) An appeals court determined that these were not fighting words.
Whore, harlot
, and
jezebel
are, though, at least according to a Wisconsin appeals court.
Ralph Ovadal was part of a group that had been protesting nude bathing at a Wisconsin beach for several years. When one of his friends tried to give Nancy Erickson a Gospel tract, she swore at him. Then Ovadal and his friends surrounded Erickson and called her “whore,” et cetera, for six minutes, in accordance with a little-known part of the gospel of Matthew: “I say unto you, Love your enemies, bless them that curse you, do good to them that hate you, and call anybody who looks like they might go swimming naked ‘harlot’ at least thirty times.”

Nigger
is the fighting word par excellence.
Jerry Spivey
, an elected district attorney in North Carolina, was overheard at a bar saying, “Look at that nigger hitting on my wife,” and he was removed from office. The North Carolina Supreme Court ruled that Spivey’s “repeated references to Mr. Jacobs [the man who supposedly hit on his wife] as a ‘nigger’ presents a classic case of the use of ‘fighting words’ tending to incite an immediate breach of the peace which are not protected.” The court goes on: “No fact is more generally known than that a white man who calls a black man a ‘nigger’ within his hearing will hurt and anger the black man and often provoke him to confront the white man and retaliate.”
The North Dakota supreme court
found that a white high school student’s use of “stupid nigger” to a black classmate constituted fighting words; a similar decision was handed down by
an appeals court in Arizona
, in a case in which a white teenager shouted at a black woman at a bus stop, “Fuck you, you god damn nigger.” The Arizona court ruled that “few words convey such an inflammatory message of racial hatred and bigotry as the term ‘nigger.’”

The
n
-word does not always fit
the definition of a fighting word, however. When a telemarketer twice insulted people who had refused his offer of home improvement services as “dumb nigger,” a New York court ruled that these were
not
fighting words. “Venting anger and frustration by hurling insults may be unpleasant and crude,” the opinion states, but unless there is a strong presumption that such words will result in violence, even racial slurs are protected speech.

The other key case
in which the United States Supreme Court has addressed fighting words is
Cohen v. California
(1971). In 1968, Paul Robert Cohen wore a jacket with “Fuck the Draft” written on it into a California municipal court. He was arrested and sentenced to thirty days in jail for disturbing the peace through offensive conduct. The Supreme Court ruled that his conviction had been unjustified. His jacket was not obscene, because under American law obscenity must clearly be erotic, and “it cannot plausibly be maintained that this vulgar allusion to the Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted with Cohen’s crudely defaced jacket.” The Court is not disputing that
fuck
is “an obscenity” or an “obscene word,” as we’ve been discussing for two-hundred-odd pages, but rather is saying that the jacket doesn’t fall into the legal category of “obscenity,” which, as we will see, is related to but distinct from obscene language.

“Fuck the Draft” was also not a case of fighting words, because the slogan was unlikely to provoke an immediate breach of the peace. The Court’s opinion stresses that this is the real concern about fighting words—they are likely to cause immediate violence, like falsely shouting “fire” in a crowded theater. To provoke such a strong reaction, they must usually be directed at an individual, to be “personally abusive epithets.” No one could have taken “Fuck the Draft” as a personal insult, so the words are not fighting words. No matter how much legislators in California hated swearing (or hated hippie protesters), they could not simply ban the use of
fuck
. The Court’s opinion also recognizes that some words carry an emotive content that may be more important than their cognitive content, and that is also constitutionally protected. When Cohen wore his jacket, he was not offering a reasoned account of why the draft should be abolished. He was communicating the strength of his opposition, which the First Amendment allows him to do.

American law has long recognized that society has an interest in regulating words that might incite people to commit violence. The difficult question with fighting words is figuring out which words
count. Not all people subscribe to the same standards of decorum; not all people are shocked and offended by the same things. “One man’s vulgarity,” as Justice Harlan put it in the
Cohen
decision, “is another man’s lyric,” and courts must be careful not to censor speech simply because they don’t like the music. America is a “rough-edged society,” as other opinions point out, and sometimes people must tolerate views they find distasteful or insulting, even when those views are expressed through racial epithets.

The situation is different in Britain
, where laws specifically forbid “hate speech”—verbal attacks based on race, ethnicity, religion, and/or sexual orientation. Freedom of speech is protected in Britain under the Human Rights Act of 1998 and under common law, but hate speech exemptions have what courts in the United States would likely call a “chilling effect” on freedom of expression. In 2012, for example,
Welsh university student
Liam Stacey was found guilty of racially aggravated harassment and sentenced to fifty-six days in jail for his Twitter posts about a black soccer player, Fabrice Muamba. Muamba had suffered a cardiac arrest during a game, moving Stacey to tweet “LOL [laugh out loud], Fuck Muamba. He’s dead!!!” When various other Twitter users reproached him for his comment, sometimes with their own obscene and possibly racist language—for example, “
You must be fucking barmy
[crazy] if you think a greasy little welsh sheep shagger could take on a fucking cockney you silly fat wanker”—Stacey responded with lines such as “I ain’t your friend, you wog cunt. Go and pick some cotton.”
*
While his tweets are extremely offensive (as are the ones tweeted to him in response), it is difficult to see how, as the trial judge put it, they “aggravated [the] situation”—Muamba was recovering in the hospital—or incited anyone to violence or racial hatred. Few people have been
charged with employing racist language in Britain under the several laws banning its use, but the possibility is always there anytime someone uses a racial slur. It would perhaps be best to follow the advice of the judge who presided over the trial of Matthew Stiddard, who, like Stacey, was charged with racially aggravated harassment.
Stiddard had called
a respected police surgeon “a fucking Paki” and was advised by the judge, “Next time call him a fat bastard and don’t say anything about his colour.”

Fighting for the Phallic Reality

The law has also attempted to regulate obscene words through obscenity prosecutions. As we’ve already discussed briefly, “obscenity” as a legal concept is not the same as “obscenities” or “obscene words.” In fact, the legal category of “obscenity” often does not even involve any obscene words. Pictures or videos can be legally obscene without any words at all, and text can be obscene without any obscene words, as we saw with
Fanny Hill
and nineteenth-century botanical pornography. But two of the most famous twentieth-century obscenity cases did center on obscene words and sped the entrée of these words into public discourse and into wider and more frequent general use. These were the trials of
Ulysses
and
Lady Chatterley’s Lover
.

James Joyce’s
Ulysses
is now seen as a classic
, perhaps
the
classic, of modern literature. It was ranked number one on Modern Library’s list of the “100 Best English-Language Novels of the 20th Century” and appears in nearly every such list, whether or not the ranking is English-language only, and whether the books are limited to the twentieth century or from all of literary history. But when it was first published in 1922, it was number one on a different sort of list—called “
the most infamously obscene
book in ancient or modern literature.” British poet Edmund Gosse announced that Joyce was “a sort of Marquis de Sade, but does not write so well.” Even Virginia Woolf tut-tutted that “the directness of the language and the choice
of incidents, if indeed there
is
any choice, have raised a blush even upon such a cheek as mine.”

So what was the problem with the greatest novel of modern literature? The book contains a fair number of obscene words, most of which are put into the mouths of two soldier characters. These two privates give voice to Joyce’s version of the language of the common soldier, as recorded in Frederic Manning’s fictionalized memoir and in Robert Graves’s
Goodbye to All That
. Like Manning and unlike Graves, Joyce spells it all out: one private threatens, “I’ll do him in, so help me fucking Christ!
I’ll wring the bastard fucker’s
bleeding blasted fucking windpipe!” and exclaims, “
God fuck
old Bennet. He’s a whitearsed bugger. I don’t give a shit for him.” The other private tells his companion, “
Bugger off
, Harry. Here’s the cops!” The critical reaction to this language—denouncements of the book as “infamously obscene”—is what Manning was afraid of when he published his memoir anonymously in a small edition, and what Graves managed to avoid with his euphemisms.

But “I’ll wring the bastard fucker’s bleeding blasted fucking windpipe” wasn’t even the main problem. The section that actually resulted in the book being made illegal in the United States was this:

And she saw a long Roman candle
going up over the trees, up, up, and, in the tense hush, they were all breathless with excitement as it went higher and higher and she had to lean back more and more to look up after it, high, high, almost out of sight, and her face was suffused with a divine, an entrancing blush from straining back and he could see her other things too, nainsook knickers, the fabric that caresses the skin, better than those other pettiwidth, the green, four and eleven, on account of being white … And then a rocket sprang and bang shot blind blank and O! then the Roman candle burst and it was like a sigh of O! and everyone cried O! O! in raptures and it gushed out of it a stream of rain gold hair threads and they shed and ah! They were all greeny dewy stars falling with golden, O so lovely! O so soft, sweet, soft!