Why do curse words trouble us so? And should government regulate them?

Why do curse words trouble us so? And should government regulate them?

Today’s brief item is custom-made for Change of Venue Friday. That’s when I locate some lighter piece of legal fare, a tasty morsel that has just a hint of the profession.

I point you to a law review article (No! Keep reading!) worth a few minutes of your time.

Before I tell you the article title, I do have to remind that this tends to be an adult-focused blog. OK? Have precocious youngsters been sent packing?

Here’s the title: “FUCK.”

No, I’m not shouting or being unnecessarily brief. The title is one word, and it is all caps.

It was written by Christopher M. Fairman, a professor at The Ohio State University Moritz College of Law. His bio includes some background on this most perfectly named essay:

“The importance of protecting words—even the four-letter ones—is at the heart of Professor Fairman’s most recent scholarly work. Professor Fairman celebrates free speech with the publication of his first book: Fuck: Word Taboo and Protecting our First Amendment Liberties (Sourcebooks 2009). The book builds on his scholarship in taboo language found in his highly popular article, ‘Fuck,’ 28 Cardozo Law Review 1171 (2007). Professor Fairman is adamant that our government should keep out of the censorship business: ‘Words are ideas. If the government can control the words we say, it can also control what we think.’”

Christopher M Fairman

Christopher M Fairman

Oh, you’d like to read the article itself? It’s right here.

And yes, before you protest, it did indeed come out of a highly regarded law review, the one at Cardozo Law.

How would I come across such a thing? I swear (get it) that I’ve seen it before, but I was happily reminded of the inflammatory piece by (who else) a law student. Thank you to Tim Bourcet for brightening our day!

A line in a Wikipedia entry about the author tells me you may have already read the article: “Fairman’s article quickly became one of the most downloaded scholarly legal articles on the internet.”

Have a great—and colorful—weekend.

This morning, I am staring at a dollar bill on my desk, trying to decipher what it “says.”

Legally speaking, it’s quite likely that it’s saying something, since the U.S. Supreme Court held that in the campaign-contribution context, that dollar is speech.

So if a greenback can talk up a storm, how is it possible that a Facebook “Like” holds no communicative value?

That was the ruling at a federal district court that had to determine whether employees were fired for exercising their free-speech rights. As the Washington Post tells the tale: 

“Daniel Ray Carter Jr. logged on to Facebook and did what millions do each day: He ‘liked’ a page by clicking the site’s thumbs up icon. The problem was that the page was for a candidate who was challenging his boss, the sheriff of Hampton, Va.

“That simple mouse click, Carter says, caused the sheriff to fire him from his job as a deputy and put him at the center of an emerging First Amendment debate over the ubiquitous digital seal of approval: Is liking something on Facebook protected free speech?”

Read the whole article here.

Risky behavior, certainly, especially given how tetchy elected sheriffs can be. But the court ruled that a simple click of “Like,” without commenting, is not speech.

The sheriff’s office is likely ecstatic. But the ruling puts that office in a strange conceptual box: The office fired people for taking a speech position contrary to the top official’s position. And the court sustained that employment decision because there was no speech involved.

Confused yet?

Oddly enough, would the court have had to rule otherwise if the employees had dropped dollar bills off at the opponent’s campaign headquarters without a note attached, rather than signal support via a digital thumbs-up?

Now, of course, the appeals roll in. As this article explains, Facebook, the ACLU and a number of amici have briefed the issue of how a Like certainly is speech.

It all makes me wonder how much the court understands social media. I wrote on Friday about a promising survey that shows judges are growing warmer to social media. But anyone who has ever worked hard for a “Like” for their business’s Facebook page understands inherently that a Like is speech. And among all the difficult-to-grasp concepts in technology, “Like” is just what it sounds.

Feel free to Like this post; I’ll know it means something.

City councilman Michael Carrigan of Sparks, Nev., poses for a portrait at the site of a proposed casino in his ward. His ethics case, Nevada Commission on Ethics v. Carrigan, is set for argument with the Supreme Court on April 27. (David Calvert/FOR THE WASHINGTON POST)

Here in Arizona, we are used to strange interactions between ethics and politics (yes, dear reader, they do intersect).

But when we feel we may have things somewhat well in hand, all we need to do is gaze northwest, where the State of Nevada reminds us that all is odd in the universe.

The question posed in the latest Silver State brouhaha: Whether an elected official’s vote is an exercise of free speech.

Sparks City Councilman Michael Carrigan (and the Washington Post) convey the basis for the debate, which will be argued at the U.S. Supreme Court this Wednesday, April 27:

“I have the distinction of being the only elected official in Nevada to ever be brought up on ethics charges for losing a vote,” Carrigan said.
“The question is whether Carrigan should even have participated in an application for a new casino in this boomtown near Reno. It has turned into a major constitutional showdown with national implications for how states may police public officials who face a potential conflict of interest in conducting the people’s business.”

The state ethics commission had determined that Carrigan “crossed the line when he voted on the casino issue after his longtime friend and volunteer campaign manager was hired by the developer.”

“Nevada’s law forbids a public official from voting on an issue when a ‘reasonable person’ would suspect a conflict because of financial ties or the interest of a spouse or family member. It also includes a catch-all category for ‘any other commitment or relationship that is substantially similar to a commitment or relationship’ like those spelled out.”

Read the whole story here.

For more information on the Supreme Court case (Nevada Commission on Ethics v. Carrigan, Docket No. 10-568), click here.