I feel like "a patient etherized upon a table." Sorry, but lately T.S. Eliot has been on my mind. I will explain later. But first, let's talk about my last month's January column, A *@#!ing New Year's Resolution. You enthusiastically responded to my query concerning quotes that involve what some would consider objectionable words. Should we sanitize them or quote them verbatim despite their vulgarity? The votes were overwhelming in favor of a direct quote. Only three nays.
Noted Appellate Attorney Jon Eisenberg was in the yea category. His view about those who sanitize quotes is simply stated: "Quote verbatim. If people are offended, fuck 'em." Well, I do have carte blanche to quote anyone who emailed me, don't I? Nevertheless, out of a sense of comity, and an aversion to being sued, I asked everyone who wrote me for permission to quote them, and they all responded that I could… as best I can remember. Mr. Eisenberg wrote: "You may attribute. Abso-fucking-lutely." He added this enlightening exegesis concerning his colorful phrase. It is called "expletive infixation," the "insertion of an expletive into a word for purposes of intensification." He suggested I insert one in my next published opinion. My immediate reaction: "Abso-fucking-lutely" not.
Mr. Eisenberg is in good company. Justice Harlan in Cohen v. California 403 U.S. 15 (1971) wrote for the majority reversing the conviction of defendant for disturbing the peace. The defendant appeared in the Los Angeles County courthouse wearing a jacket bearing the words "Fuck the Draft." If the casual reader missed the quote, it was in bold in the opinion.
In his opening paragraph, Justice Harlan pointed out, "This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance." Rather than again repeating the defendant's "distasteful mode of expression," his "vulgar allusion to the Selective Service System," Justice Harlan in his concluding paragraph wrote: "It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense. Because that is the only arguably sustainable rationale for the conviction here at issue, the judgment below must be Reversed."
In Board of Education v. Pico 457 U.S. 853 (1982), the majority held that a school board exceeded constitutional limitations in removing certain books from school libraries. Rejecting summary judgment in favor of the school district, the high court reasoned that issues of fact must be presented to determine whether the school board abused its discretion and remanded the case for trial. One of the dissenters, Justice Powell, appended to his dissent a list of the books at issue in the case in which our special word has prominence in a variety of contexts. He provided a generous list of examples. Among the books are Soul on Ice by Eldridge Cleaver, A Hero Ain't Nothin' But a Sandwich by Alice Childress, The Fixer by Bernard Malamud, and Slaughterhouse Five by Kurt Vonnegut. Horrors! Looks like we have come a long way since 1982.
Getting back to comments I received, another prominent appellate attorney, Robert Gerstein, drew upon Cole Porter to cast his vote in favor of verbatim quotes. "Good authors, too, who once knew better words now only use four-letter words writing prose… anything goes." Gerstein opines, "So, why fight a trend."
Attorney Stephanie Charles, in elegant prose, wrote of her reaction when she stumbled upon the "forbidden word" in my last column. "I can hardly believe my eyes—this is never seen. The verbal liberation, the freedom of expression, the unleashing of the Id! Never mind the teacup generation, the snowflakes that melt when exposed to offense. Let them cry and protest. Let them run to their safe places, wherever they may be. They will not control your (or my) behavior. My vote is in favor of adoption of the resolution."
Justice Nora Manella wrote, "Count me as a vote for the real thing. In this brash and vulgar world, only those living in a convent can credibly claim to have been insulated from coarse language. The principal rationale for hiding offensive words is the no-longer-tenable suggestion that they are just too shocking for the average reader to digest. One may deplore crude language, but quoting it neither endorses nor exalts it. I am not unsympathetic to those who think the world would be a better place with less vulgarity. I share the sentiment. But if the defendant's actual words were 'Everyone on the fuckin' floor or I'll blow your fuckin' heads off,' saying he 'requested the bank patrons assume a prone position or risk an untimely demise' seems silly."
Presiding Justice Judith McConnell pointed out that "it is important to accurately quote whatever was said since the offensive nature of the language used is part of the story we are telling."
Judge Theresa Canepa wrote: "Hear hear for your article! I agree‑‑say what we mean, and mean what we say. People should learn to cope with the real meaning of real words. So for that New Year's resolution‑‑if people don't like it, then 'give 'em hell, Harry!'"
Attorney Thomas Bourke recalled how a verbatim quote in an employment harassment case in which he represented the plaintiff made all the difference. In his argument before an appellate panel, Bourke told the court that the supervisor's actual words were "What the fuck do you have against Harry?" (I made up the name Harry.) The defense attorney sanitized the statement with, "Well, how are things going?"
Many readers wrote me to voice opinions about the use of vulgar language in general. Civil Service Hearing Officer Jan Frankel Schau recognizes the importance of a verbatim quote in writing and rendering a decision, but in general she advises, "[L]eave it off your vocabulary. Make your second language music instead." Good advice, but even in music, one cannot avoid controversy. Stretching the boundaries of tradition invariably results in complaints of vulgarity in some quarters.
My colleague Justice Steven Perren had this to say: "I spent more than a moment on one point: the full spelling of the expletive. Your points are valid. My reaction: it lessened the impact of the article. You joined the ranks of the "'Potty Mouthed.'" A conundrum. In making your point, you arguably make the point to retain the silly practice. You dropped the "'F Bomb.'" Curiously, I think that not using the word makes it stronger. Everyone knows it; everyone says it (gender to the contrary notwithstanding). The spelled out word has lost its impact and has simply become a word used by those unable to go beyond four letters in objecting, decrying or rebuking another of his/her ideas. The symbolic word seems more powerful: I really mean it!"
Retired San Diego Superior Court Judge Edward B. (Ned) Huntington wrote of his ambivalence: "I'm a red-blooded, all-American male and a golfer, who uses the aforementioned 'word' in all of my everyday life. I often mutter it in my daily use of this computer that tends to cause waaaaay toooo many 'operator errors' in its everyday functioning. It's truly a word with which I've grown up – playing rugby, golf and fishing – however, I have to admit that when I saw the word in actual life-size print, it created quite an unexpected shock. It surprised me to have such a reaction since I basically concur in your underlying thesis."
Research Attorney Kathleen Berglund offered thoughtful comments about vulgar and offensive words. She notes that many people, including those successful in business, "are all too disposed to use vulgar and offensive language. They have no filters; they say and do what they want, and they may also think that using the 'f' word makes them sound tough, even authoritative. But truncating the word won't change any of that, in my opinion. If the word is truncated in whatever context it appears (including, even, in our appellate court opinions), most readers today will just laugh and think, 'Look at those ninnies, they can't even write the 'f' word!'" "'Ha!'" Ms. Berglund suggests "a national dialogue on offensiveness, vulgarity, and gracelessness generally—not to be confused with over-sensitivity. Have we become so narcissistic, as a people, that throwing the 'f' bomb around at will has become acceptable, even standard behavior? I hope not. But that is the open and frank discussion we need to have. Truncating the word, and thereby creating a sort of 'safe zone' for the reader, will not help to solve the problem."Attorney John Gilmore wrote: "When I became officially allowed to practice law on January 16, 1962, the word over which you agonize meant something evil and menacing. That is, even though it was a swear word that derived from an act of pleasure and, on occasion, procreation. Now, it has lost its oomph. Calling someone a 'f.....g a.....e' does not have the same force and effect as, 'You are a jerk.' The f bomb is a dud. So formerly offensive words, called 'swear' words, are being replaced by those in standard dictionaries of 54 years ago. If one uses 'jerk' at an appropriate time and place, there is no thought of slovenly hiding behind swearing to make a point. Just direct, straight talk to that point."
Attorney Chris Moore prefers "the unrestricted use of Anglo Saxon expletives not be used in polite speech or writing." He posits that "the coarsening of speech deprives these vigorous words of the very meaning and impact they deserve. Having served in the Navy, I know that 's---' and 'f----' have many uses. Used too often, though, they become just more all-purpose words that don't require thought, like 'swell,' 'gosh' or 'great,' and signify nothing."
Attorney Martin Pulverman did not beat around the bush and gave me sound advice. "I prefer not to see noxious words. I never heard my father utter a cuss word. I didn't hear one from my mother until I was 16. It is better that way. You have no problem expressing a point of view without the use of offensive comments or objectionable, unpleasant and distasteful phrases. Please keep it that way."
Thank you all for writing. Sorry I could not include everyone's comments in this column. They were all enlightening.
But let's get back to T.S. Eliot who has been on my mind. I ordered two copies of a new annotated book, The Poems of T.S. Eliot. They were delivered on our doorstep two weeks ago Sunday morning.
My wife Barbara and I heard the thump of the package as the delivery person dropped it at our doorstep. Barbara went downstairs to get the package. As she opened the door, a young woman was running down our outside stairs clutching the package. Barbara yelled an unavailing "Stop!" I wish she would have added "thief" to the end of her entreaty. The young woman jumped into a car parked at the curb with its engine running. It sped off before Barbara could get the license plate number. I arrived just as the car turned the corner. I shouted at the top of my lungs…. You know, there is something unseemly about quoting oneself.