"Dirty words" and the offense principle

Law and Philosophy

Volumn 19, Issue 5, 2000, Pages 545-584

  Shoemaker, David W ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 0034558751     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505212     Document Type: Review

References (81)

1. Quoted in Burges Johnson, The Lost Art of Profanity (Indianapolis: The Bobbs-Merrill Company, 1948), p. 19.
2. I hasten to point out, however, that there remains a great deal of unresolved confusion in the literature over the extension of both "offensiveness" and "harmfulness," i.e., is the set of all offensive things a subset of harmful things, does it merely intersect with the set of harmful things, or are the two wholly distinct? Obviously the way in which this question is answered will have a bearing on just how many principles justifying coercive legislation liberals generally adhere to. Indeed, this has been a nettlesome problem for some time, a problem that can perhaps be traced back to Mill's famous "exception" to the Harm Principle allowing for legislation to prohibit "offenses against indecency" (John Stuart Mill, On Liberty (Arlington Heights, Illinois: Harlan Davidson, Inc., 1947), p. 99). I hope to address this specific problem elsewhere. For purposes of this paper, however, I essentially follow the exposition and distinctions of Joel Feinberg, although, as I point out below, his view may be incomplete.
3. While I restrict my analysis in this paper to television and radio, there are also laws on the books against more broadly construed public profanity which are occasionally enforced. For example, consider the charges brought in 1997 against the Mayor of Brandon, Mississippi. While agitated prior to a public meeting, Mayor Roe Grubbs directed certain remarks to a City Attorney "which included the word 'damn'" and were picked up by a nearby microphone. The Mayor was charged with public profanity. Reported in The Memphis Commercial Appeal, Nov. 13, 1997. There is also the recent, more publicized case of the "cursing canoeist" (Timothy Boomer), who, after falling out of his canoe in a lake in northern Michigan, proceeded to let loose with a stream of profanities. A couple with two young children in a nearby canoe heard the words and paddled furiously away. Boomer was convicted in June 1999 for violating an 1897 state law against cursing in front of children. In August 1999, he was sentenced to perform four days community service and either pay a fine of $75 or spend three nights in jail. See The Los Angeles Times, Aug. 24, 1999. What I have to say in this paper should also, by extension, be applied to these sorts of laws.
4. Joel Feinberg, Offense to Others (The Moral Limits of the Criminal Law, Volume Two) (Oxford: Oxford University Press, 1985), p. 3.
5. Ibid., p. x. Feinberg's interest-oriented account of harm has repeatedly been challenged, however. See, for example, Dorothy Grover, "Posthumous Harm," The Philosophical Quarterly v. 39, no. 156 (July 1989): 334-353, esp. 347-350; E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at Wrongful Life," Law and Philosophy v. 7 (1988): 3-33, esp. pp. 23-27; Anthony Ellis, "Offense and the Liberal Conception of the Law," Philosophy & Public Affairs v. 13, no. 1 (Winter 1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly v. 15, no. 1 (January 1978): 27-36. What is common to all of these challenges, however, is the partial agreement with Feinberg that, while setbacks to interests are not necessary conditions of harm, they are indeed sufficient conditions of harm. (Ellis contends that setbacks to desires may be neither necessary nor sufficient for harms, but mere desires are different from interests, and I think a carefully construed interestbased theory of harm might be able to account for his counterexamples. See Ellis, p. 5.) That is all I need for purposes of this paper.
6. Ibid., p. x. Feinberg's interest-oriented account of harm has repeatedly been challenged, however. See, for example, Dorothy Grover, "Posthumous Harm," The Philosophical Quarterly v. 39, no. 156 (July 1989): 334-353, esp. 347-350; E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at Wrongful Life," Law and Philosophy v. 7 (1988): 3-33, esp. pp. 23-27; Anthony Ellis, "Offense and the Liberal Conception of the Law," Philosophy & Public Affairs v. 13, no. 1 (Winter 1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly v. 15, no. 1 (January 1978): 27-36. What is common to all of these challenges, however, is the partial agreement with Feinberg that, while setbacks to interests are not necessary conditions of harm, they are indeed sufficient conditions of harm. (Ellis contends that setbacks to desires may be neither necessary nor sufficient for harms, but mere desires are different from interests, and I think a carefully construed interestbased theory of harm might be able to account for his counterexamples. See Ellis, p. 5.) That is all I need for purposes of this paper.
7. Ibid., p. x. Feinberg's interest-oriented account of harm has repeatedly been challenged, however. See, for example, Dorothy Grover, "Posthumous Harm," The Philosophical Quarterly v. 39, no. 156 (July 1989): 334-353, esp. 347-350; E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at Wrongful Life," Law and Philosophy v. 7 (1988): 3-33, esp. pp. 23-27; Anthony Ellis, "Offense and the Liberal Conception of the Law," Philosophy & Public Affairs v. 13, no. 1 (Winter 1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly v. 15, no. 1 (January 1978): 27-36. What is common to all of these challenges, however, is the partial agreement with Feinberg that, while setbacks to interests are not necessary conditions of harm, they are indeed sufficient conditions of harm. (Ellis contends that setbacks to desires may be neither necessary nor sufficient for harms, but mere desires are different from interests, and I think a carefully construed interestbased theory of harm might be able to account for his counterexamples. See Ellis, p. 5.) That is all I need for purposes of this paper.
8. Ibid., p. x. Feinberg's interest-oriented account of harm has repeatedly been challenged, however. See, for example, Dorothy Grover, "Posthumous Harm," The Philosophical Quarterly v. 39, no. 156 (July 1989): 334-353, esp. 347-350; E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at Wrongful Life," Law and Philosophy v. 7 (1988): 3-33, esp. pp. 23-27; Anthony Ellis, "Offense and the Liberal Conception of the Law," Philosophy & Public Affairs v. 13, no. 1 (Winter 1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly v. 15, no. 1 (January 1978): 27-36. What is common to all of these challenges, however, is the partial agreement with Feinberg that, while setbacks to interests are not necessary conditions of harm, they are indeed sufficient conditions of harm. (Ellis contends that setbacks to desires may be neither necessary nor sufficient for harms, but mere desires are different from interests, and I think a carefully construed interestbased theory of harm might be able to account for his counterexamples. See Ellis, p. 5.) That is all I need for purposes of this paper.
9. Ibid., p. x. Feinberg's interest-oriented account of harm has repeatedly been challenged, however. See, for example, Dorothy Grover, "Posthumous Harm," The Philosophical Quarterly v. 39, no. 156 (July 1989): 334-353, esp. 347-350; E. Haavi Morreim, "The Concept of Harm Reconceived: A Different Look at Wrongful Life," Law and Philosophy v. 7 (1988): 3-33, esp. pp. 23-27; Anthony Ellis, "Offense and the Liberal Conception of the Law," Philosophy & Public Affairs v. 13, no. 1 (Winter 1984): 1-23, esp. pp. 5-6; and John Kleinig, "Crime and the Concept of Harm," American Philosophical Quarterly v. 15, no. 1 (January 1978): 27-36. What is common to all of these challenges, however, is the partial agreement with Feinberg that, while setbacks to interests are not necessary conditions of harm, they are indeed sufficient conditions of harm. (Ellis contends that setbacks to desires may be neither necessary nor sufficient for harms, but mere desires are different from interests, and I think a carefully construed interestbased theory of harm might be able to account for his counterexamples. See Ellis, p. 5.) That is all I need for purposes of this paper.
10. Feinberg, p. 5.
11. Ibid., p. 1.
12. Ibid., p. 2. As Feinberg points out, it is not necessary, in terms of the Offense Principle, that I also resent the offending party for causing me to be in that psychological state. I may not care who it is that is doing the offending. All that is required for the Offense Principle to play a role is that I am offended and I know the source is external to me.
13. The intentions of the person performing the offensive/harmful action will, at least in part, determine whether or not the offense/harm was in fact wrongful.
14. Joel Feinberg, "'Harmless Immoralities' and Offensive Nuisances," in Norman S. Care and Thomas K. Trelogan, eds., Issues in Law and Morality: Proceedings of the 1971 Oberlin Colloquium in Philosophy (Cleveland: The Press of Case Western Reserve University, 1973), p. 85 (emphasis in original).
15. For example, being offended involves my being placed into an unpleasant psychological state. That alone seems a reason to consider the offensive action to be harmful in the ordinary sense of the word. Why not consider it as such? Furthermore, it is unclear why the scales of offense and harm are incommensurable, that, as Feinberg puts it, "[O]ffenses are a different sort of thing altogether, with a scale all of their own" (Offense to Others, p. 3), given that extreme offenses may also "be actually harmful, in a minor sort of way" (ibid.). Is it their extreme nature that makes them harmful? If so, why not think of them as being on the lowest part of the harm scale and not on a different scale altogether? I suspect that, due to these worries and others, Feinberg's treatment of the distinction between offense and harm is ultimately too imprecise to cover all cases. But as I mention in the text, the rough distinction he offers is sufficient for my purposes in this paper.
16. Feinberg discusses this possibility in Offense to Others, p. 3.
17. Ibid., p. 2; emphasis in original.
18. Notice that it is not an offended mental state per se that is a necessary condition for this type of harm; rather, it is the emotionally traumatized state of mind that matters, and this mental state could be caused by inoffensive events/actions as well. See ibid., p. 3.
19. There has been a recent movement by some feminist writers to categorize certain obscenities, e.g., pornographic materials, as constituting rather straightforward harms to women (and in some cases men), so that these "obscenities" would go far beyond being mere offenses. See, e.g., Catherine MacKinnon, "Pornography, Civil Rights, and Speech," in Steven Jay Gold, ed., Moral Controversies: Race, Class, and Gender in Applied Ethics (Belmont, CA: Wadsworth Publishing Co., 1993), pp. 345-356; Harry Brod, "Pornography and the Alienation of Male Sexuality," in Gold, pp. 372-383; and Andrea Dworkin, "Power," in Susan Dwyer, ed., The Problem of Pornography (Belmont, CA: Wadsworth Publishing Co., 1995), pp. 48-52. Such arguments recognize the obvious point (mentioned above) that harms are inherently more serious than mere offenses. The question, then, is whether or not certain obscenities are, in fact, harmful offenses (indeed, they may be too harmful to be called "offenses" at all). The heart of the debate, therefore, is over (a) what counts as a harm (a conceptual question), and (b) whether or not pornography in fact causes harm (generally an empirical question). If the conceptual issue were settled and the empirical issue were well-established (both conditions that have not yet been adequately satisfied, in my opinion), then these obscene events/actions rightly would no longer fall under the rubric of harmless offenses. But until that day comes, I think we are safe in including all or most obscenities under the category of harmless offenses. It at least seems abundantly clear that the obscenities I deal with in the last part of the paper - vulgar words - belong in this category, and that is what ultimately matters for our purposes here.
20. There has been a recent movement by some feminist writers to categorize certain obscenities, e.g., pornographic materials, as constituting rather straightforward harms to women (and in some cases men), so that these "obscenities" would go far beyond being mere offenses. See, e.g., Catherine MacKinnon, "Pornography, Civil Rights, and Speech," in Steven Jay Gold, ed., Moral Controversies: Race, Class, and Gender in Applied Ethics (Belmont, CA: Wadsworth Publishing Co., 1993), pp. 345-356; Harry Brod, "Pornography and the Alienation of Male Sexuality," in Gold, pp. 372-383; and Andrea Dworkin, "Power," in Susan Dwyer, ed., The Problem of Pornography (Belmont, CA: Wadsworth Publishing Co., 1995), pp. 48-52. Such arguments recognize the obvious point (mentioned above) that harms are inherently more serious than mere offenses. The question, then, is whether or not certain obscenities are, in fact, harmful offenses (indeed, they may be too harmful to be called "offenses" at all). The heart of the debate, therefore, is over (a) what counts as a harm (a conceptual question), and (b) whether or not pornography in fact causes harm (generally an empirical question). If the conceptual issue were settled and the empirical issue were well-established (both conditions that have not yet been adequately satisfied, in my opinion), then these obscene events/actions rightly would no longer fall under the rubric of harmless offenses. But until that day comes, I think we are safe in including all or most obscenities under the category of harmless offenses. It at least seems abundantly clear that the obscenities I deal with in the last part of the paper - vulgar words - belong in this category, and that is what ultimately matters for our purposes here.
21. There has been a recent movement by some feminist writers to categorize certain obscenities, e.g., pornographic materials, as constituting rather straightforward harms to women (and in some cases men), so that these "obscenities" would go far beyond being mere offenses. See, e.g., Catherine MacKinnon, "Pornography, Civil Rights, and Speech," in Steven Jay Gold, ed., Moral Controversies: Race, Class, and Gender in Applied Ethics (Belmont, CA: Wadsworth Publishing Co., 1993), pp. 345-356; Harry Brod, "Pornography and the Alienation of Male Sexuality," in Gold, pp. 372-383; and Andrea Dworkin, "Power," in Susan Dwyer, ed., The Problem of Pornography (Belmont, CA: Wadsworth Publishing Co., 1995), pp. 48-52. Such arguments recognize the obvious point (mentioned above) that harms are inherently more serious than mere offenses. The question, then, is whether or not certain obscenities are, in fact, harmful offenses (indeed, they may be too harmful to be called "offenses" at all). The heart of the debate, therefore, is over (a) what counts as a harm (a conceptual question), and (b) whether or not pornography in fact causes harm (generally an empirical question). If the conceptual issue were settled and the empirical issue were well-established (both conditions that have not yet been adequately satisfied, in my opinion), then these obscene events/actions rightly would no longer fall under the rubric of harmless offenses. But until that day comes, I think we are safe in including all or most obscenities under the category of harmless offenses. It at least seems abundantly clear that the obscenities I deal with in the last part of the paper - vulgar words -belong in this category, and that is what ultimately matters for our purposes here.
22. Indeed, several philosophers have maintained that one can be harmed posthumously, which clearly would not involve any mental state at all on the part of the harmed person. See, e.g., Grover.
23. An aspect of normativity, I should emphasize, that seems absent in ordinary cases of harm. For example, it would seem quite odd to claim that, given your present interests, you ought to have been harmed by my stealing your money, even though you honestly claim not to be. We may say that you ought to feel harmed (i.e., be righteously indignant), but this is a different normative claim, a claim about what one's attitude toward the independently existing harm ought to be. There is an objective fact of the matter with regard to harm itself that obtains regardless of one's attitude toward the harmful action. If I have an interest in X, and someone sets back that interest wrongfully, I have been harmed, regardless of my reaction to the harm. Contrast this picture with that of offense, in which one's attitude toward a particular action/event is constitutive of whether or not one is offended. Here it makes perfect sense to make normative claims about the reactions one ought to have had toward particular actions/events, and in so doing one is making normative claims simply about whether or not one ought to have been offended.
24. Feinberg, Offense to Others, p. 26.
25. Ibid., p. 35.
26. Ibid.
27. Ibid., p. 34.
28. Even though Feinberg explicitly wants to take into account the reasonableness of the offender's conduct. See, e.g., ibid., p. 26.
29. A somewhat similar criterion, called the Reasonableness Standard, is offered in Donald VanDeVeer, "Coercive Restraint of Offensive Actions," Philosophy & Public Affairs v. 8, n. 2 (Winter 1979), p. 181. However, VanDeVeer goes on to argue against such a standard, giving the allergy analogy I consider (and reject) below. (VanDeVeer also conflates irrational beliefs/sensibilities with unreasonable ones, assuming that unreasonable beliefs are "'evidently irrational'" (p. 181), yet this strikes me as quite misleading. A belief or sensibility might be perfectly rational and yet remain unreasonable. For example, it may be in my best interests (prudentially rational) to be offended by certain immodest behavior (perhaps I want to impress my devout fiancée with my own piety), but the offense I take at that behavior may nevertheless be unreasonable (in that it presupposes some false belief about the world, say). I go on towards the end of this section to provide another reason to distinguish unreasonable from irrational reactions.)
30. Feinberg, Offense to Others, p. 35.
31. Ibid., p. 36.
32. Ibid., pp. 36-37.
33. Ibid., p. 37.
34. John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
35. Ibid., p. 214.
36. Ibid.
37. Ibid., p. 218.
38. Ibid., p. 59.
39. Ibid., p. 220.
40. Ellis, p. 5; emphasis in original.
41. Ibid. Ellis maintains, however, that nuisance laws are justified under the Harm Principle, and he argues that the Offense Principle, as it is usually construed, should have no application in a liberal state. I, however, am less willing to eliminate the Offense Principle out of hand. All of this depends, of course, on how "harm" is defined, and Ellis' attempt to define it as anything that destroys the conditions necessary for the flourishing of individuality seems in one sense too narrow (e.g., consider a case in which a woman is raped and then has her memory of the crime erased; the conditions of her flourishing have perhaps not been destroyed at all, even though it seems obvious that she has been harmed), and in another sense too broad (e.g., Ellis' view would allow foul smells to constitute harms, but this seems to stretch the concept too widely). I set aside these difficulties here. His general point about the motivation behind the law is quite apt and useful for our own purposes.
42. Ibid., p. 6.
43. Some people invariably maintain that the abolition of slavery and the civil rights laws in the 1960's were justified on moral or religious grounds, and so it must occasionally be permissible to establish laws with such justifications. However, it seems quite clear that these were laws justified by the Harm Principle, properly construed. Attention may certainly be brought to an issue by appealing to moral or religious grounds, but that is not to say that justification of any legislation enacted in response to such rhetoric is provided by those grounds.
44. I am grateful to Michael Gorr for raising these worries.
45. Rawls, p. 58.
46. Ibid.
47. VanDeVeer, pp. 181-183.
48. Ibid., p. 182.
49. Ibid.
50. In fact, it is unclear that VanDeVeer's analogy holds for any type of offended reaction, given the way in which we have defined offense, simply because allergic reactions generally constitute a harm to the sufferer (consider, e.g., the extreme case in which someone allergic to bee stings can die if untreated immediately). Recall that offended reactions as they are relevant for the Offense Principle involve a harm only in the trivial sense that they involve setbacks to the offended person's interest in not being offended, i.e., they are essentially harmless. If the offensive action/event also causes harm, then the now-harmed person's complaint falls under the rubric of the Harm Principle, where it is automatically to be taken more seriously. Thus, it seems VanDeVeer's analogy holds only for certain types of harmed states due to a person's abnormal susceptibility for being harmed (hemophiliacs, say, who bruise and bleed quite easily). Surely the plight of such people ought to count for something, but this would entirely be due, it seems, to their being harmed, not offended.
51. Following Feinberg, Offense to Others, p. 36.
52. Ibid.
53. I suspect (although I am not prepared to argue for this point here) that these "nonreasonable" offended reactions are hardwired into us for sound evolutionary reasons. After all, it makes perfect sense for us to have evolved mechanisms enabling us to be averse to potential food sources that would be quite bad for us if ingested.
54. On this general point, see also Ellis, p. 9, and Michael Stocker with Elizabeth Hegeman, Valuing Emotions (Cambridge: Cambridge University Press, 1996), esp. pp. 56-59.
55. Ellis, p. 10. Alternatively, Stocker cites Sartre's comment about a frequently heard anti-Semitic argument, viz., "'You see, there must be something about the Jews; they upset me physically'" (Stocker, p. 59). Stocker mentions this case as an illustration of emotions revealing the valuings of individuals.
56. Ellis, pp. 9-10.
57. Ellis, p. 8. Strictly speaking, of course, this isn't necessarily true. Long-time vegetarians, for example (like our old friend Apu), may very well be offended by the smells of cooked meat coming from their neighbor's barbecue. Similarly, Muslims may be offended by the smell of pork. I think it fairly obvious, however, that we can trace such offended reactions to certain internalized normative judgments (for instance, there is a behavior that is being implicitly morally judged in both cases, viz., the cooking and eating of, respectively, sentient beings and "filthy" creatures), and as I shall argue shortly, these reactions can be evaluated under the Reasonableness Condition *.
58. Thomas Nagel, The Possibility of Altruism (Princeton, NJ: Princeton University Press, 1970), p. 3.
59. Offense to Others, p. 36.
60. One might very well draw such an argument from the later Rawls himself. See his "The Priority of Right and Ideas of the Good," in Samuel Freeman, ed., John Rawls: Collected Papers (Cambridge, MA: Harvard University Press, 1999), pp. 454-455. There he suggests that, given certain precautions, we could expand the list of primary goods (goods needed by all free and equal persons for their pursuit of their individual conceptions of the good) to include things like leisure time "and even certain mental states such as the absence of physical pain" (p. 455). So our townspeople in this case might draw an analogy between the absence of physical pain and the absence of intense and enduring offense to the extent that both involve an involuntary focus of attention on matters that distract one from the development of one's moral powers and the pursuit of one's conception of the good.
61. I am grateful to an anonymous referee at Law and Philosophy for articulating this objection so forcefully.
62. Rawls, "The Priority of Right and Ideas of the Good," p. 459; emphasis mine.
63. Ibid., p. 449.
64. See, e.g., John Rawls, "The Idea of an Overlapping Consensus," in Freeman, p. 425: "This diversity of [comprehensive] doctrines - the fact of pluralism - is not a mere historical condition that will soon pass away; it is, I believe, a permanent feature of the public culture of modern democracies."
65. Here I follow the exhaustive classification provided by Feinberg in Offense to Others, pp. 205-208.
66. Although newspapers are outside the purview of the FCC, they also attempt to maintain "standards of public decency," and while they do not have to worry about providing any offensive sounds, they sometimes act as if their readers need to be protected from the very sight of offensive words, insisting on not even mentioning (let alone using) certain words. As a result, we get such coy stories as the following, reported in The Los Angeles Times, June 10, 1998. Apparently, during the broadcast of the Tony Awards, Irish actor Tom Murphy used, as the report put it, "the 'F-word,'" but he "pronounced the word as the Irish do - with an E as the second letter, and no G at the end." Apparently, "feckin'" is too offensive a word even to print. Humorously enough, during the broadcast itself the word was left in, simply because the network censor "was not familiar with the pronunciation and 'decided to give the benefit of the doubt on it because she didn't want to disrupt the acceptance speech.'" The report goes on to say that it "is believed to be one of the few times the word, or even a close approximation, has found its way into a network broadcast, except for sports events at which microphones are placed on the sidelines near players." I suppose we should consider Irish athletes to constitute double threats.
67. Exodus 25:10.
68. Indeed, attempting to block the broadcast of certain "offensive" words solely based on their sounds can lead to quite hilarious consequences. The Memphis Commercial-Appeal ran a story in September 1998 about a new gadget intended to delete words or phrases deemed offensive from TV broadcasts by reading the closed-captioning signal encoded into various shows and replacing the offensive-sounding words with inoffensive euphemisms. On a trial run of the device, however, the famous name "Dick Van Dyke" came out "Jerk Van Gay."
69. Harry Frankfurt provides a delightful analysis of the term "bullshit," concluding that it is generally meant to refer to a claim that is "produced without concern for the truth." See "On Bullshit," in his The Importance of What We Care About (Cambridge: Cambridge University Press, 1988), p. 129. If he is right, then the phrase "Your claim was made with no concern whatsoever for the truth" would provide an inoffensive (albeit far less succinct) substitution for the exclamation "Bullshit!"
70. I am grateful to Eric Cave for drawing my attention to this objection.
71. And if someone could actually articulate the meaning whose expression (in any form) he wished to restrict in public, would his own articulation fall under the list of banned phrases?
72. Comic strip artists will often resort to a string of symbols found on the top row of a computer keyboard to get this type of exclamation across, e.g., "@#$%*!!!"
73. Although I should point out that in some contexts such words might best be treated as harms, falling under the rubric of the Harm Principle, insofar as they may constitute a type of threat that goes beyond mere offense in their effect.
74. A case might be made that the word "fuck" indeed does have such baggage attached to it, perhaps insofar as it has been used as a word connoting a violent attitude toward women or having something to do with rape. I certainly don't disagree that the word has been used in such contexts. The question is whether or not it has been used enough in those contexts such that it carries with it primarily that offensive baggage. This is an empirical matter, but I sincerely doubt that it does. The word "fuck" has been, and can be, used in too many different ways and in too many different contexts for it to have garnered a single, dominant connotation. On this general point, see Timothy Jay, Cursing in America (Philadelphia: John Benjamins Publishing Company, 1992), and Geoffrey Hughes, Swearing (Oxford: Blackwell Publishers, 1991). Of course, one might maintain that there are still certain contexts in which the word "fuck," when targeted directly at a woman, carries with it the truly offensive historical baggage in question. Two points may be made in response. First, while this may be true, it seems that such usage would constitute a threatening or harassing action, an action that should obviously be covered under the Harm Principle. But the more important point is this: I am concerned solely with the use of such words in public media, and in those contexts, the words are never (or very rarely) directed at people in the listening audience. Rather, they are directed to other characters or people within the context of the broadcast. So the worry is (for the most part) moot.
75. A case might be made that the word "fuck" indeed does have such baggage attached to it, perhaps insofar as it has been used as a word connoting a violent attitude toward women or having something to do with rape. I certainly don't disagree that the word has been used in such contexts. The question is whether or not it has been used enough in those contexts such that it carries with it primarily that offensive baggage. This is an empirical matter, but I sincerely doubt that it does. The word "fuck" has been, and can be, used in too many different ways and in too many different contexts for it to have garnered a single, dominant connotation. On this general point, see Timothy Jay, Cursing in America (Philadelphia: John Benjamins Publishing Company, 1992), and Geoffrey Hughes, Swearing (Oxford: Blackwell Publishers, 1991). Of course, one might maintain that there are still certain contexts in which the word "fuck," when targeted directly at a woman, carries with it the truly offensive historical baggage in question. Two points may be made in response. First, while this may be true, it seems that such usage would constitute a threatening or harassing action, an action that should obviously be covered under the Harm Principle. But the more important point is this: I am concerned solely with the use of such words in public media, and in those contexts, the words are never (or very rarely) directed at people in the listening audience. Rather, they are directed to other characters or people within the context of the broadcast. So the worry is (for the most part) moot.
76. I should note here that, despite our contrary positions throughout most of this paper, Feinberg and I are actually in agreement regarding what the state's view on vulgar public language ought to be. As he writes in a lengthy and fascinating treatment of obscene words in Offense to Others, "The offense principle ... cannot justify the criminal prohibition of the bare utterance of obscenities in public places even when they are used intentionally to cause offense" (p. 277). I hasten to add, however, that Feinberg and I take very different paths to this conclusion. Indeed, one of the reasons his treatment of the topic is so lengthy (nearly 100 pages) is that he must take the time to discuss the relevance of his four conditions (discussed earlier in this paper) for the various types of obscene words that might be publicly used. I believe my treatment of the topic is superior, however, insofar as it is both simpler (because none of the arguments for banning the words passes the Reasonableness Condition *, there is no need to move on to Feinberg's other four conditions) and theoretically more in keeping with the ideals of a liberal state with respect to certain other potential candidates for application of the Offense Principle (e.g., the billboard discussed at length earlier).
77. Alan King, the long-time comedian and Abbot of the Friar's Club, echoed these remarks recently in his capacity as introducer for the Friar's Club Roast of Drew Carey. In defending the amount of vulgar language that he knew was to come from the various roasters of Carey (and which he knew would be bleeped out during the broadcast), he said, "The English language is very limited, and words that color a sentence, or a situation, should be welcome." Broadcast on the cable channel Comedy Central, October 28, 1998.
78. I do not at all mean to suggest that the substitutions mean or connote something different than the vulgar word, only that the vulgar words may occasionally be more efficient to use if one wants quickly to express such meanings/connotations.
79. "Copulating" might work here, but it remains too dry and technical a word to connote what is usually meant by "having sex" or "fucking." It actually does better at conjuring up images of, say, the mating of dung beetles.
80. Again, see Frankfurt on this topic.
81. I am greatly indebted to Eric Cave, Mark Timmons, audience members at both an April 1998 Social & Political Philosophy Conference in Columbia, Missouri and an October 1998 University of Memphis Research in Progress Colloquium, and an anonymous referee at Law and Philosophy for their extremely helpful remarks on earlier drafts of this paper. My thinking on these matters was also greatly sharpened through several enjoyably combative conversations with Josh Glasgow.