Obscenity

No intended obscenity in this column. So why the title? Because like so many other concepts based on beliefs or values, obscenity cannot be clearly explained. “I know it when I see it.” Justice Potter Stewart’s unforgettable phrase in describing – or should I say – his inability to describe obscenity but having little doubt about what it is. (Jacobellis v. Ohio (1964) 378 U.S. 184, 197 (conc. opn.).) He acknowledged, “I could never succeed in intelligibly [defining obscenity].” (Ibid.) He admitted with refreshing candor that he would not even attempt to define what materials fall within that definition. But he had no doubt in deciding whether the film, which was the subject matter of the case, was obscene. At the conclusion of his famous pronouncement he wrote, “[A]nd the motion picture involved in this case is not that.” (Ibid.) What a relief. Case decided. But is Justice Stewart to be praised or vilified for basing his decision on certainty without a specific concrete definition of obscenity? What could be more uncertain? Or is obscenity a concept that is so elusive and subjective that the definition can only exist in the mind of the beholder? Some have argued that films depicting scenes of violence are obscene. Hitchcock’s Psycho comes to mind. That I jumped out of my seat during the shower scene I attribute to expert editing. I still mourn for Janet Leigh. She had such a brief appearance in the film. How often does a major star die in the first few minutes of a major film? Why didn’t her agent bargain more forcefully for a change in the script? Sorry, I got carried away. Where were we? Oh, yes, obscenity. Not really, just using that as an illustration of a theme regular readers know I obsess over uncertainty. To say its presence is pervasive suggests it is something apart from what we perceive and think we know. Uncertainty simply is. Perceptions of what we are and how we behave are not universal. And judges are not exempt. The Jacobellis case illustrates the law is dynamic, reflecting changing mores and societal attitudes, often with the judiciary playing catch-up. At his confirmation hearing, then Chief Justice Roberts designate must have had his tongue inching along his cheek when he informed the inquiring senators that the Supreme Court calls “balls and strikes.” Yes, but it also changes the rules of the game. Courts interpret and apply the law to facts. The courts may interpret facts in various ways, but that interpretation must cohere. Facts may not be altered or changed. Woe to the lawyer who “stretches” or misstates the facts. But however faithful judges are to facts, their opinions are expressed in words. And the changing perceptions of how we interpret the world is reflected in our changing language. And words are what judges use to fashion their opinions. To add to the law’s uncertainty, it is unfortunate that many Supreme Court opinions are fragmented into separate concurring, dissenting, partially dissenting, and not quite concurring, and concurring with caution opinions. “Can’t they just get along?” Often, I ask myself, “So what is the holding?” And if I think I know what the holding is, do I have confidence it will apply in what I think is a similar situation? Yes, the tools of a judge’s trade are words. In addition to being absolutely sure that the facts are accurately stated, the words used to examine and analyze those facts may color how the reader responds to the opinion. In articles and lectures I have warned lawyers and my colleagues that facts should be powered by verbs and nouns. Beware of adjectives and adverbs. And let us be careful of how our words may be perceived. What is the middle ground between rigidity and flexibility? How do we balance sensitivity to changing mores against slavish adherence to what is politically correct? Let’s examine the first sentence of this paragraph as an example. “The tools of a judge’s trade are words.” Other than the sentence being unoriginal and trite, I am perfectly comfortable with it. Should I worry that a colleague or anyone would prefer I had used “profession” instead of “trade”? I hesitate to use the current “give me a break,” or “please.” No, on second thought, I will use them. This is a column not a judicial opinion. In judicial opinions and briefs we must be sensitive to our changing language and how expressions may be perceived or interpreted. For example, in my April column “House Arrest,” I wrote about my additional household chores during my current homebound COVID 19 quarantine, which included cleaning the toilets. In the final draft, I wrote that in evaluating my performance my wife was “stingy with praise.” In an earlier draft, I had written “niggardly with praise.” The origin of “niggardly” goes back to the 14th Century and comes from Middle English “nyggard” and means “stingy.” Of course, I knew it sounds like the extremely contemptible word that racists use to describe Black people. I originally thought that should not be a reason to use what had been a perfectly legitimate word before bigoted ignoramuses concocted a word that had a similar sound. Perhaps I was unconsciously uneasy. I showed my column to a few friends in addition to my wife before submitting it. They advised not to use the word. One of them, a close friend and a highly respected superior court judge, argued that substituting another word for “niggardly” would not be, as I contended, an overly sensitive capitulation to political correctness and the debasement of our language. Her counter argument was that closeness in sound to the two words makes any reader think of the contemptible word and detracts from what I am writing about. This has nothing to do with political correctness. So you know what I did. Was I right? Another troubling grammatical usage that concerned me was the use of “they” to refer back to a collective noun as in “when the jury decided the case ‘they’ had no trouble finding the defendant not guilty.” I generally used “the jurors” to correspond to “they.” I had a bigger problem with the proper pronoun for “the police,” or “the government.” And how about, “When a defendant asks for a lawyer, they are entitled to one.” This drove me nuts, but it avoids the cumbersome “he or she” and is gender neutral. And using “she” as the operative pronoun instead of “he” is like bragging how politically correct one is. I have it on good information and belief that this new gender use of “they” is being contemplated for use at the judge’s discretion in jury instructions. I discussed my initial discomfort with this ungrammatical use of “they” with my good friend Professor Marvin Zukerman, whose many books involve translations of Yiddish literature into English. He quoted sources that legitimized this usage. In a Dictionary of Contemporary American Usage by Evan Evans (1957), “The use of they in speaking of a single individual is not a modern deviation from classical English. It is found in the works of many great writers, including Malory, Shakespeare, Swift, Defoe, Shelley, Austen, Scott, Kingsley, Dickens, Ruskin, and George Eliot.” If it’s good enough for George Eliot, then I’m in. Notice George Eliot has both her first and last name mentioned. Yes, George Eliot was a woman and masterful Victorian novelist. Her real name was Mary Ann Evans. I let you guess why she changed her name. Hey, it just occurred to me George Eliot and I have something in common. We both have first last names. I wish we had more in common. But getting back to “they,” I am now convinced that if a person wishes to use “they” instead of “she or he” or “he or she,” they have every right to do so. Professor Zukerman points out that H.W. Fowler’s Dictionary of Modern English Usage (1965) says, “In colloquial usage the inconvenience of having no common sex personal pronoun in the singular has proven stronger than respect for the grammarians, and the one that is available in the plural is made to serve for the singular too.” And my Oxford Miniguide to English Usage (1983) at page 249 acknowledges that a grammatical difficulty “arises” because “English has no singular pronoun to connote common gender.” It gives examples where well-known writers, following earlier grammarians’ advice, used “his” when gender was not indicated. But at page 250, it states, “Popular usage… for at least five centuries favored the plural pronoun.” Example: “Nobody would ever marry if they thought it over.” G.B. Shaw. We can sum up how our language changes by Ben Jonson’s poem cited in Zukerman’s book Words, Words, Words (McMillan 1974). Much Phrase that now is dead Shall be recviv’d And much shall dye, that now is nobly liv’d If custom please at whose disposing Will, The pow’r and Rule of Speaking Resteth still. Ben Jonson (from English Dictionary, by E. Coles, London, 1717)