"Bad Language and the Law by Anthony Grant "

Law reaches so far into a community and no further. It does not condemn unspoken thoughts. It does not, as a rule, condemn unkindness. If it did, the country would become preoccupied with law suits.

Something which hovers tantalisingly close to the reach of the long arm of the law is bad language. Those whose tongues form offensive words maybe sued for libel. They may be prosecuted for using obscene, profane or indecent language. Or they may be met with mild reproach or even laughter.

There is in the law an anomalous situation that a word spoken on one occasion may cause the speaker to be convicted of a criminal offence, whilst on another occasion the use of the same word will bring no legal censure at all. How can the law be so uncertain? When should the criminal law intervene when faced with bad language? Should the law be involved with at all?

These questions become more relevant when the various cases on this topic are considered. To highlight the issues, all the cases dealt with in this article are concerned with the same word. The Shorter Oxford Dictionary gives its date of birth as 1503 and states it was until recently regarded as a taboo word and rarely recorded in print.

Use in the 19th Century

There is no doubt that to print that a man used the particular word when he did not is likely to expose the printer to an action for defamation. On 23 January 1882 The Times carried a report of a speech made by the then Home Secretary, Sir William Harcourt QC, at Burton-on-Trent. If the editor of the paper did not receive a writ for libel as a result of the report it was only his subsequent profuse apologies which saved him.

The article ran:

I saw in a Tory journal the other day a note of alarm, in which they said “Why, if a tenant-farmer is elected for the North Riding of Yorkshire the farmers will be a political power who will have to be reckoned with”. The speaker then said he felt inclined for a bit of fucking. I think that is very likely. (Laughter). But I think it is rather an extraordinary thing that the Tory party have not found that out before. ( P 7, col 4)

A few days later the paper reported that:

“No pains have been spared by the management of this journal to discover the author of a gross outrage committed by the interpolation of a line in the speech of Sir William Harcourt … and it is hoped that the perpetrator of this outrage will be brought to punishment”. (The Times, Friday, January 27, 1882, p9, col 6)

The great pains were unproductive. About six months later the phantom struck again: this time it was the publisher of a book which was advertised under the column “New Books and New Editions” who was presented with the opportunity of suing the editor for libel. As printed the advertisement ran:

A New and Cheaper Edition, fully Revised, price 6s. EVERYDAY LIFE in our PUBLIC SCHOOLS. Sketched by Head Scholars. With the Glossary of some Words used by Henry Irving in his disquisition upon fucking, which is in Common Use in those Schools. Edited by CHARLES EYRE PASCOE. With numerous Illustrations. Church Times – “A Capital book for boys”. Record – “The book will be an acceptable present”.
(The Times, Monday, June 12, 1882, p8, col 2)

Later Usage

In recent years it has appeared ever more frequently. By the 1960s it was being used in such “important” books as Eldridge Cleaver’s Soul on Ice and in a great range of lesser literature, particularly in the so-called underground press which flourished in America and Europe in the late 1960s and early 1970s. the word became so popular that it appeared in pop music (Steely Dan’s 1973 song “Show Biz Kids”, for example), in poetry (See for example, the poem by Allen Ginsberg, the public reading of which gave rise to the unsuccessful prosecution in Wiggins v Field (1968) 66 LGR 635 DC. The offensive line was “Go fuck yourself with your atom bomb”.) and in serious literature. And its use today is so widespread that there is scarcely a publication which does not print it from time to time.

Arising from the greater use it was bound to happen that the Courts would be asked to determine whether its use was lawful.

The American Cases

Amongst the many people in the corridor of the Los Angeles County Courthouse on 26 April 1968 was a young man who wore emblazoned on his jacket the words “Fuck the Draft”. Women and children were present and the authorities decided to prosecute the man, Paul Cohen, for “disturbing the peace by offensive conduct”. He was convicted but he appealed all the way up to the Supreme Court. (Cohen v California 403 US 15; 91S Ct 1780; 92S Ct 26.) In a majority decision it was declared by the Court that the first and fourteenth Amendment to the Constitution must be taken as disabling the States from punishing public utterance of the word “fuck” in order to maintain what they regard as a suitable level of discourse within the body politic. Cohen had been wrongly convicted.

The use of the word in a different context was considered by the Supreme Court in Papish v Board of Curators of the University of Missouri 93 S Ct 1197. Barbara Papish sold various papers on her University campus. One of the matters which upset the University was an article in one of the papers headed “Mother Fucker Acquitted” – a reference to a radical New York organisation with the unusual name, “Up against the Wall, Mother Fucker”. The University used a bylaw which prohibited “indecent conduct or speech” to expel her and the Supreme Court decided to hear her appeal. The Court held that the article was not constitutionally obscene and ordered that she should be reinstated.

In America, it therefore seems that it is unconstitutional to prevent the use of the word.

The New Zealand Cases

The New Zealand Courts have taken a different attitude to the word: everything is relative. Whether its use is criminal or not depends on the context in which it was used at the time of use. The word was used several times in the play “Hair” and the producer, Harry M Miller Attractions Ltd, was prosecuted for presenting an indecent show. A jury acquitted the company of the charge.

A short while later Germaine Greer used the word at a meeting at Auckland University. She was convicted for doing so but, before her appeal from the Magistrate’s decision was heard, 200 of her supporters marched on the Wellington Central Police Station and chanted the particular word (and one other) in the apparent expectation that it might assist with her appeal. Their hopes were dashed. Ms Greer’s appeal failed (“If the appellant wished to use the work ‘fuck’ in the privacy of her own home or in the presence of friends, she was free to do so, but in the context of a public meeting the use of that word was contrary to accepted standards”) Germaine Greer v The Police unreported, Auckland Registry,
M 244/72 McMullin J, p6 (1972).
and her supporters were convicted too. Police v Piper & Others (1972) 13 MCD 319.

The conduct of a University of Canterbury student on Anzac Day in 1972 gave the Court of Appeal the opportunity to consider the criminality of the word. Mr Drummond had interrupted the Commemorative Service being held in Cathedral Square by jumping onto the top of a low wall and shouting in a loud voice the words “fuck” or “fuck the police”. (Police v Drummond 1973 2 NZLR 263 at 264) Women and children were present to hear this and he was subsequently convicted for using obscene language. The Court of Appeal upheld his conviction. Turner P had no doubt that the words used were “calculated to offend those who heard them because of their indecent, lewd or disgusting connotation” and McCarthy J seemed to have no doubt that the conviction for using obscene language was made out if the language used “offends against the contemporary standards of propriety in the community”. (Ibid at p 268)

The application of that test in Ms Elliott’s case shows the uncertainties which are likely to result. She was a punk rock singer, who sang with the “Suburban Reptiles” at a rock music festival in North Auckland in 1978. The audience, which included women and children, disliked her performance and instead of receiving applause she received abuse and beer cans. Amidst the onslaught she seized the microphone and shouted to her critics that they could “get fucked”. Mr Maxwell SM acquitted her of the charge of using obscene language and gave such reasons as “a rock concert is not a conservative gathering” and that “as a swear word it is certainly used frequently” in films and elsewhere.

Mr Justice Holland has recently considered two further cases concerned with the use of the same word as constituting obscene language. The first case arose from an unemployment rally in the centre of Auckland. Mr Harawira had a megaphone and did not shrink from speaking his mind. He said:

“What do we want? We want work!”
“What have we got? We’ve got fuck all!”


Women and children were present and could hear this. Harawira was convicted and appealed to the High Court. Holland J said “I find it significant that the words used were ‘fuck all’” and he then proceeded to adopt McCarthy J’s test mentioned earlier and said “In the light of contemporary standards of propriety in the community I do not consider that the use of the term, in the circumstances where it was done here, was obscene”. (Harawira v The Police unreported, Auckland Registry. M 1550/80, 13.11.80)

The second appellant, Anne Rihia, did not fare so well. She had told some police officers who were conducting an investigation in a public place “Go on, fuck off!” Holland J said of her case, “I am satisfied that to say to a stranger or to any person in the presence of others to ‘fuck off’ does offend against contemporary standards of propriety in the community”. (Rihia v The Police unreported, Auckland Registry, M 1212/80 13.11.80). Her conviction was therefore upheld. It is interesting to note that in her case other persons were present in the street and heard her language but it is not said that women and children were among them; although, the defendant being a woman, it is presumably fair to surmise that other women may have been present.

The New Zealand attitude is therefore that it may be a criminal offence to use the word – it all depends on the context in which the word is used, who the hearers are, and whether the Judge thinks that contemporary attitudes would regard the use of the word in those circumstances as obscene.

The Unfair Dismissal Cases

There are places where the word is so commonly used that the only difficulty is to determine its contractual significance in the context of the civil law. The Unfair Dismissal legislation in England has given rise to a great variety of cases, two of which are relevant here.

In the first, Tanner v D T Kean [1978] IRLR 110, an employer who told an employee:

“What’s my fucking van doing outside, you bastard! I’ve lent you £275.00 to buy a car and you’re too tight to put juice in it. That’s it; you’re finished with me.”

was held not to have dismissed the employee. The Tribunal held that the employee had merely received a “reprimand”.

The second case has alliterative attraction, It involved Mr Futty – a fish filleter. Futty was told by his foreman:
“If you don’t like the job – fuck off!”

which Futty duly did. He then brought proceedings for unfair dismissal. Other fish filleters gave evidence concerning the meaning which should be given to the expression and after hearing these explanations the Tribunal found that the foreman’s words were no more than “a general exhortation to get on with job”. There had been no dismissal. (Futty v P & D Brekkes Ltd [1974] IRLR 130)

Judicial Use of the Word

When these cases first came before the Courts there was some reluctance even to use the work in the judgments. In Cohen v California Burger C J was so upset that the word might be used that he told Justice Harlan (who refused to say whether he would keep it out of his judgment) “it would be the end of the Court if you use it” (The Brethren, Woodward & Armstrong, Simon & Schuster, 1979, p 133) but in the subsequent case of Papish v Mo (93 S Ct 1197) these inhibitions were put aside.

Woodward and Armstrong in their book on the Supreme Court, The Brethren, give several instances of occasions when the Judges themselves have used bad language. For instance, Justice Brennan resented having to write the judgment in Antoine v Washington (420 US 194, 95 S Ct 944) (which, incidentally, he referred to as the “chickenshit case”) and when Burger C J suggested an alteration to the draft judgment, Brennan informed his clerks in exasperation, “Here is the change. What the fuck does it mean?(The Brethren, p 359)

For the benefit of aspirants to the Appellate Bench it is salutary to record one other instance of Justice Brennan’s frustrations. Burger C J assigned to him the job of writing the judgment in Sakraida v Ag Pro Inc, (425 US 273, 96 S Ct 1532) an uninspiring case known around the Supreme Court as the “cow shit case” (Ibid) as it was concerned with a patent dispute over a water flush system designed to remove cow manure from the floor of dairy barns. He was so upset by this assignment that in the subsequent case he decided to vote whichever way would leave him in the minority “so that bastard [ie Chief Justice Brennan] can’t give me cases like this”.

Criticism of the New Zealand Position

The Court of Appeal’s test leads to considerable uncertainty. Whether the use of the word will result in a criminal conviction depends on whether the Judge who hears the case thinks that its use on the particular occasion, in the presence of the particular people who heard it, in the particular part of the country in which it was spoken, was obscene or indecent. Judges think differently about these things.

The cases show how unsatisfactory the test is:

- To use the word at a public gathering at a University is a criminal matter (Germaine Greer v The Police) although to use the word on the stage as a noun, verb and present particle is not (the “Hair” prosecution).

- To chant the word outside a Police Station is an offence (Police v Piper & Others) although it is not an offence to shout it through the megaphone in central Auckland in the expression “fuck all” (Harawira v The Police).

- To tell the Police to “fuck off” is an offence (Rihia v The Police) although to tell women and children to “get fucked” is not (Police v Elliott)

While it is no doubt correct that the word can be so employed as to be more offensive on some occasions than others, it is not desirable that the criminal law should be so uncertain. Those who may be inclined to use bad language publicly are entitled to have some idea of what the consequences may be. The American attitude of approving or disapproving of a particular word has the attraction of certainty and is more in accordance with the great premise of the criminal law that a citizen is entitled to know what conduct will attract the grave stigma of a criminal conviction – before he stands in the dock.

It would require considerable courage to condemn as invariably obscene the particular word discussed in this article since its use is so widespread, but if they wished to do so the New Zealand judiciary would at least have the great advantage over their American counterparts that none are recorded as having used it.

Note

This article was read to the Court of Appeal by counsel for an appellant in another case involving the use of the word “fuck”. The late Sir Robin Cooke – or Lord Cooke of Thorndon as he was to become – was a member of the Court which heard the appeal. One of the other judges on the Court that day later told me with amusement how Sir Robin had dismissed this article with the sentence: “Why, it is almost written in a jocular vein?”


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