September 22, 2009

Don’t cuss at the toilet…


Derived from the Greek word for "filth," the narrow, legal definition for obscenity is framed to cover written or visual material, speech and behavior that are not protected by provisions of the First Amendment. While pornography is often considered to be obscene, obscenity is not necessarily pornographic. Then we have "Indecency," which is a broader term encompassing material that some may find objectionable, but which still enjoys some measure of Constitutional protection.

Profanity, it seems, can be either obscene or indecent, depending on circumstances and individual perception. The origins of the term have roots in religion, with the original meaning referring to blasphemy. Blasphemy is defined as an offensive attack on religion or religious figures. In times of old, blasphemy was grounds for execution.

Although blasphemy has maintained a religious reference, the definition of profanity has evolved to include vulgar expressions with rude, generally sexual overtones. Whether language is obscene or simply indecent is relative, and in most cases, obscenity is protected free speech while indecency, often, is not. In this country, blasphemy is classified as obscene, but not indecent, and is almost never chargable.

The line between obscenity and indecency

That which is deemed obscene by one culture or segment of society may merely be rude elsewhere. The ancient Indians had the Kama Sutra, and Greece produced artistic depictions of sexual acts on ancient pottery. While perfectly acceptable in their time and culture, neither was considered appropriate for polite Victorian society. In 1711 the government of the Commonwealth of Massachusetts enacted laws banning of "wicked, profane, impure, filthy and obscene material," yet did not define any of those terms. Enforcement was relative to the sensibilities of individual judges.

More than a century passed before the courts attempted to define the terminology and fully address the question of the tolerable obscene vs. the indecent obscene. In Commonwealth v. Sharpless (1815), a shopkeeper was convicted of displaying the picture of a nude couple in a provocative pose for profit, thus injecting a capitalistic spin to the debate. There was no law on the books at the time to prevent the display, so the defendant appealed. The Pennsylvania Supreme Court didn’t let the lack of written law dissuade them. They agreed with prosecutors that the depiction was “lewd and obscene,” and that obscenity was a violation of common law. The conviction was therefore upheld.

Then in 1821, Massachusetts convicted two merchants for selling copies of the book Fannie Hill, a fictional memoir of a prostitute that was both quite legal and enormously popular in England at the time.

The federal government got into the act in 1843, with Congress passing legislation to regulate the sale of some particularly spicy French postcards. Colonial morals, it seems, were more sensitive than in the old country.

In 1873 Congress passed the Comstock Act, named after former postal inspector and anti-porn crusader Anthony Comstock, who was the founder of the New York Society for the Suppression of Vice. Violations of the act were based for the first time on solid definitions. These definitions were considered overbroad, and challenges to the act started almost immediately. Puritan morals were firmly entrenched, so most challenges were unsuccessful.

It wasn’t until the 1957 case, Roth v. United States, that SCOTUS offered its definition of obscenity. Justice Brennan, writing for the majority, stated that the perception of obscenity was relative, and depended on "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interests," but mitigated that by requiring that the material must be "utterly without redeeming social value."

In Kingsley International Pictures v. Regents of the State of New York, (1959) SCOTUS further sharpened its definition, finding that there could be no such thing as "ideological obscenity."

Then in Ginzburg v. United States, (1966) the Warren Court, with Justice Brennan again writing for the majority, stated that "the conduct of the defendant is the central issue, not the obscenity of a book or picture." That same year SCOTUS vindicated Fanny Hill, by declaring that the novel was not obscene. Three years later, in Stanley v. Georgia, it was the Warren Court again defining law by declaring that "the mere private possession of obscene matter cannot constitutionally be held a crime." The times, it seems, were changing.

Until the 1960’s, all of this has dealt with obscene writings and displays; those items we would call pornography. There had been no legal discussion to that point of the legality or illegality of profanity.

Then came Lenny Bruce

"What does it mean to be found obscene in New York? This is the most sophisticated city in the country....If anyone is the first person to be found obscene in New York, he must feel utterly depraved." -- Lenny Bruce, following his 1964 arrest for obscenity, in New York City.

Comedian Lenny Bruce would test America's tolerance of obscene language. In 1962, Bruce was arrested in San Francisco and charged with violating California’s obscenity laws. He had used the term “cocksucker” in a routine while performing at a nightclub. In his trial, Bruce was represented by noted First Amendment lawyer Albert Bendich. Following a long, dramatic trial in which many expert witnesses were called, Bruce was acquitted.

California, it seems, was prudish in those dayse and wasn’t willing to easily give up. Bruce was arrested only a few weeks later following a performance at West Hollywood's Troubadour Club. Two weeks later, Illinois got into the act. Following a Chicago appearance, Bruce was arrested on similar charges. And then California had him yet again following a Los Angeles show. Bruce beat all of the California charges, but in Chicago he was convicted and sentenced to a year in prison. This conviction would be appealed.

The reputation preceded him while travelling to London for a show, as British authorities denied Bruce entry, “for the public good,” arrested him at the airport and promptly deported him back to the States. Later that same year, California took another shot.

Lenny Bruce, it seems, had become a rather unpopular man. Recognizing this fact, he decided that there was only one place left that appreciated his brand of comedy; New York City.

On April Fool’s Day, 1964, Lenny Bruce found out just how wrong he was. Following a show at the Greenwich Village Cafe Au Go Go, Bruce was arrested by plain clothes officers masquerading as bar patrons, for violating New York state’s obscenity laws. New York Penal Code, section 1140-A, prohibited "obscene, indecent, immoral, and impure dram, play, exhibition, and entertainment...which would tend to the corruption of the morals of youth and others."

A three-judge panel, voting two to one, found Lenny Bruce guilty as charged. The court ruled that Bruce's act "appealed to prurient interest," was "patently offensive to the average person in the community," and lacked "redeeming social importance." He was sentenced to four months of hard labor. He appealed, but On August 3, 1966, before SCOTUS heard the case, Bruce died of a morphine overdose.

Vague language and confusing intent

As part of his defense, Lenny Bruce argued the vagueness of the obscenity statutes. This has been the concern of constitutional scholars for decades, both in writing law, and in litigation. Poorly defined statutes would often lead to overturned convictions. In Bruce v. New York it did not affect the outcome, but in many modern obscenity cases, that argument worked quite well.

In Cohen v. California, a 19-year-old expressing opposition to the Vietnam War by wearing a jacket with the logo "FUCK THE DRAFT. STOP THE WAR" was charged under a California statute that prohibits "maliciously and willfully disturb[ing] the peace and quiet of any neighborhood or person [by] offensive conduct." He was found guilty and sentenced to 30 days in jail. In overturning the conviction, SCOTUS noted that the profane word on the jacket was not directed at a particular individual and aroused no violent reaction.

In 2002 the Michigan Court of Appeals heard an anti-profanity case; People v. Boomer, otherwise known as the case of the cussing canoeist.

Timothy Boomer was canoeing Michigan’s Rifle River when he struck a rock, and the canoe overturned. His cussing was loud enough that a police officer claimed to have heard him a quarter-mile away, and a family in a fishing boat nearby was so appalled that they left the area. Boomer was cited for violating a century old law that criminalized the use of profane language in front of women and children.

The Michigan Court of Appeals tossed the conviction and overturned the law. “[A]llowing a prosecution where one utters ‘insulting’ language could possibly subject a vast percentage of the populace to a misdemeanor conviction.” The court further stated that the law violated the First Amendment guarantees, and that it would be “difficult to conceive of a statute that would be more vague.”

Then comes a true case of potty mouth, where an off-duty Scranton, Pennsylvania cop filed obscenity charges on a neighbor because she was cussing at an overflowing toilet. The cop was offended by the language, and now Scranton will be paying out the nose for an improper arrest.


Taken at face value, obscene or profane language is almost never a criminal form of speech. Generally, gestures are also protected. The cases mentioned here are only representative samplings of the hundreds tried before U.S. courts. Context seems to make all the difference as to whether the language is protected, and it seems most cases filed stem from offended sensibilities and not actual violations of law. The failure of law enforcement to properly interpret statutes, and of prosecutors difficulty in making weakly defined laws stick have led to numerous reversals.