Lawsuits

Laws are revealing evidence of social mores, since they focus on those breaches of conventional behavior that a society regards as unacceptable and punishable. The legal consequences of swearing naturally have a long history, stretching from the earliest times to the present. The entry for Fines and Penalties sets out the punishments for such infractions. However, the typical grounds for bringing lawsuits have varied greatly as social norms and sensitivities have changed, especially toward the use of profanity, obscenities, or ethnic slurs. Comments or accusations impugning a person’s honor, which in medieval times im- plied cowardice or treachery, have been replaced by provocations relating to race or sexual preference. Furthermore, the notion that a particular book, poem, play, or film can be sufficiently offensive to public morals to be prosecuted has continued through to modern times. The situation in America is, of course, grounded in the First Amendment guaranteeing freedom of speech and of the press. British law underwrites no such freedoms, regarding the courts as the protector of public morals and decorum. The development of broadcasting has obviously introduced new complexities.

As the entry for the Anglo-Saxon Period shows, the laws were punitive on what would now be called slander, or spoken insult, as opposed to libel, which is in written or printed form. This is to be expected in an oral culture. The laws also included the interesting prohibition “Do not ever swear by the pagan gods.” The historical records of the period, now greatly diminished, do not indicate how often these revealing laws were invoked.

In the medieval period, the relationship between language and honor was no less intense. However, different notions of trial applied—namely, trial by ordeal and trial by combat. Charges of treason, more common than today, were usually decided by duel than by process of law. In late medieval and Renaissance times elaborate schedules of fines were established for blasphemy and profanity. The vigilance of the Master of the Revels over the content and the language of plays from Elizabethan times led to a number of proceedings. Ben Jonson became embroiled in two cases, the first concerning libel in Eastward Ho! (1605), which led to him and the co-authors being imprisoned. The second involved the religious language of The Magnetic Lady (1632), over which he was exonerated. The subsequent censorship of the stage is covered in the entry for Lord Chamberlain.

Two major lawsuits that scandalized Victorian respectability were precipitated by insulting or incriminating language. The famous trials of Oscar Wilde in 1895 are covered in the entry for homosexuals. Less well known was The Cleveland Street Scandal, which arose in 1889 when Lord Euston sued The North London Press for libel when it claimed that he and other high-society gentlemen frequented a homosexual brothel in Cleveland Street in London. Although the evidence supporting the newspaper’s reports was very strong, the editor was found guilty of libel and sentenced to a year’s imprisonment. The trial is covered in Pearsall (1969).

The bulk of lawsuits in modern times have arisen from charges of obscenity, in itself a comparatively recent term in the language, dating from around 1600 and continuously problematic in its definition. The Obscene Publications Act of 1857, originally designed to counter the flow of pornography in Victorian times, also led to many successful prosecutions against major or significant literary works. The definition of obscenity, deriving from a later key judgment of Lord Chief Justice Alexander Cockburn in 1868, was so broad that, as George Bernard Shaw wrote in 1928, “There is not a work of literature which Counsel would defend as being outside that all-embracing definition” (Moore 1955, 47). This proved to be largely true, the principal cases being covered in the entry for censorship. A highly significant prosecution was launched in 1928 against Radclyffe Hall’s The Well of Loneliness , which dealt frankly with lesbianism, although in the proceedings the preferred terms were “inversion,” “perversion” and “unnatural practices.” The Chief Magistrate, Sir Chartres Biron, would not admit the evidence of forty distinguished authors called as expert witnesses for the defense. (Unlike D.H. Lawrence’s Lady Chatterley’s Lover , the work had been well received initially.) The court order was that the book should be destroyed as “an offence against public decency.” The conduct of the subsequent appeal was even more outrageous, since the presiding Judge, Sir Robert Wallace, would not even permit the jury of twelve magistrates to read the book. He dismissed the appeal with the words: “This is a disgusting book. It is an obscene book prejudicial to the morals of the community.”

A similar pattern of prosecutions occurred in America under the provisions of the so-called Comstock Act of 1873, designed to suppress “obscene and indecent matter.” Section 1461 of the Criminal Code (18 U.S. Constitution Section 1461) prohibits the mailing of material that is “obscene, lewd, lascivious, indecent, filthy or vile.” The act led to the suppression of works as diverse as From Man to Man by Olive Schreiner (1926), The Sun Also Rises by Ernest Hemingway (1926), Elmer Gantry by Sinclair Lewis (1927), and What I Believe by Bertrand Russell (1929). (Hemingway’s novel was subsequently published, without harassment, in the United Kingdom under the title of Fiesta .) More significant, however, were the failed prosecutions against The Well of Loneliness (1929), Ulysses (1933), and a great number of other significant works. In the Ulysses case Judge John M. Woolsey’s “considered opinion” was acerbic but sensible: “Whilst in many places the effect of Ulysses on the reader is undoubtedly somewhat emetic, nowhere does it tend to be an aphrodisiac. Ulysses may, therefore, be admitted to the United States” (Phelps and Deane 1968, 146).

The entry for Lady Chatterley’s Lover deals with the suppression and prosecution of D.H. Lawrence’s most controversial novel from its first publication in 1928 through its suppression, to its eventual vindication in 1959 in the United States and 1960 in the United Kingdom. Thereafter the number of prosecutions for obscenity declined greatly. However, even after the milestone Chatterley case, there was an attempt by the Commonwealth of Massachusetts to censor John Cleland ’s notable pornographic classic Memoirs of a Woman of Pleasure , first published in 1749. The Supreme Court overturned the ban in Memoirs of a Woman of Pleasure v. Attorney General of Massachusetts (1966).

The monumental Oxford English Dictionary , published between 1884 and 1928, became a revealing indicator of the taboos that could lead to lawsuits. Largely owing to the pressure of the Obscene Publications Act of 1857, the taboo words fuck and cunt were omitted, without contemporary comment. However, a great deal of profanity, obscenity, and ethnic insults were included. The only case brought against the publishers ( Shloimowitz v. Clarendon Press , 1972) was on the grounds that the work included insulting uses of the word jew . The case was dismissed with costs on July 5, 1973.

The widespread protests in the United States against the Vietnam War involved the politicization of foul language, notably by radical students at Berkeley, California. What started out as the Free Speech Movement was stigmatized as the so-called Filthy Speech Movement as a consequence of mobilizing the use of obscenities in slogans as a form of protest. The two most favored were “Fuck the Pigs!” and “Fuck the Draft.” One of the consequent landmark cases was that of Cohen v. California 403 US. 15 (1971), arising out of Cohen wearing a jacket bearing the words “Fuck the Draft” in a Los Angeles courthouse corridor. The state’s decision to convict Cohen was reversed on appeal by the Supreme Court, which ruled in a comprehensive judgment that “Words are often chosen as much for their emotive as their cognitive force.” Following other rulings rejecting the banning of specific words, it continued: “We cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.” It concluded: “The state may not, consistently with the First Amendment and the Fourteenth Amendment, make the simple public display here involved of this single four-letter expletive a criminal offence.” It also noted wryly: “While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric” (25-26).

In the field of broadcasting, complaints commonly derive from the special relationship of the medium with the audience, especially such notions as the privacy of the home, the protection of unconsenting adults, and the presence of children. Complaints have increased in recent decades, but proceedings have been comparatively rare. A Citizen’s Complaint was mounted in 1973 against the Pacifica Foundation Radio Station WBAI, New York, over the broadcast in the early afternoon of a twelve-minute comedy routine called “Filthy Words,” a record of a live show, a monologue by “George Carlin, Occupation Foole.” After the introductory remarks, the monologue consisted of a discourse on the words shit, piss, fuck, cunt, cocksucker, mother-fucker, fart, turd, twat , and tits , making fun of the inconsistencies between acceptable idiom and taboo usage. The complaint was upheld by the Federal Communications Commission. Pacifica Foundation appealed against the decision in 1975 ( Pacifica Foundation v. Federal Communications Commission , case no. 75-1391). The U.S. Supreme Court upheld the F.C.C. “Declaratory Order” against the radio station, arguing that the standard for obscenity was appropriate for Carlin’s words, which were therefore not constitutionally protected.

In another high-profile case, the Communications Decency Act was introduced in 1995 in response to increasing pornography on the internet and passed the following year. However, on June 26, 1997, the Supreme Court struck down the Act ( Reno v. American Civil Liberties Union ), upholding the decision of a court in Philadelphia, on the grounds that a portion of the Act was an unconstitutional abridgement of the First Amendment guaranteeing freedom of speech.

Even after the revision of the Obscene Publications Act in the United Kingdom in 1959 and the revisions to film classification, prosecutions were still brought. That against Bernado Bertolucci’s film Last Tango in Paris in 1974 led to the noted British film critic Alexander Walker commenting appositely on “the futility of trying to pass moral judgements on aesthetic works, particularly when the visual image was bound to be judged by words on the printed page” (1977, 239).

The entry for blasphemy covers two unusual, highly publicized cases in the United Kingdom. The first was the successful private prosecution for blasphemous libel brought by Mrs. Mary Whitehouse against the magazine Gay News in 1977 for publishing a poem by James Kirkup under the title of “The Love That Dares to Speak Its Name.” The title is a direct riposte to that of a poem by Oscar Wilde’s lover Lord Alfred Douglas, namely “The Love That Dares Not Speak Its Name.” However the poem is the homosexual fantasy of a Roman centurion for the crucified Christ, who is depicted on the Cross in the style of Aubrey Beardsley, complete with a large penis. This is referred to as “that great cock, the instrument of our salvation” (quoted in Travis, 2001, 259). The second case was the failed attempt in 1989 to invoke the law against Salman Rushdie’s controversial novel The Satanic Verses .

A special category in South African law is that of crimen injuria . This is defined as an unlawful action intentionally injuring the dignity of another person, and is most commonly invoked for cases of swearing, especially for using highly offensive ethnic slurs such as kaffir and coolie . On this issue the United States Supreme Court rejected as “plainly untenable” the theory that the use of a particular word could be proscribed because of the likelihood that its utterance would provoke a violent reaction.