Schneider: Courts should protect our right to swear

Attend any University of Wisconsin home football game, and you'll get to hear the ribald "cheer" that forced ESPN to begin muting the student section years ago. Translated into polite-speak, the cheer implores one section of Camp Randall Stadium to "dine on excrement," while another section is invited to "engage in intercourse." (It seems one of the sections comes out way ahead on this deal — in fact, Christopher Hitchens once expressed puzzlement at the "F--- you" insult, noting it confuses an amorous act with "an act of aggression.")

For years, athletic director Barry Alvarez and other campus administrators have implored students to end this cheer, given the number of children who attend Badger games. But while the chant might be tasteless and boorish, it certainly isn't criminal.

Yet the issue of whether profanity itself is speech protected under the First Amendment has found its way to the Wisconsin Supreme Court. The court must decide whether a mother can be criminally prosecuted for "disorderly conduct" for using profanity toward her own son in the privacy of their own home.

After Ginger Breitzman's son burned some popcorn, she went on an extended profane tirade against the 14-year old boy while he was on the phone with a friend, calling him a "f--- face," a "retard" and a "piece of s---." All the evidence against Breitzman suggests she is a terrible mother — she has done jail time for other child neglect charges, which she currently isn't disputing.

But the disorderly conduct charge is important as a matter of precedent — as a catch-all crime, it could effectively criminalize the use of profanity in the home. As Chief Justice Patience Roggensack noted during the oral argument on Wednesday, no disorderly conduct charge would have been brought against Breitzman had she told her son she was "disappointed in him," or that he had "been disrespectful," or that he was "behaving poorly." It was the specific profane words she used that landed her before the Supreme Court fighting a criminal charge.

In 1971, the U.S. Supreme Court visited the issue of public profanity, overturning 19-year-old Paul Robert Cohen's conviction for disturbing the peace by wearing a jacket that said "F--- the Draft" in a public courthouse. “To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance," the court wrote, but "that the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.”

The court recognized that the First Amendment not only protects specific language but ideas expressed by that language. And it didn't want to be the referee determining which words could be used to further those ideas.

The fact is, people use profanity for a variety of reasons. It can be used to shock, offend, punctuate and berate. For some, profanity is an art form; a comedian like Dave Chappelle expertly commands the "F" word like Cézanne wielded an oil brush. Some believe profanity is a tool for the undereducated to overcompensate for their sub-optimal vocabularies; yet even American vice presidents like Dick Cheney take untold delight in urging combative senators to "go f--- themselves."

Are the courts going to determine what words are acceptable and which ones aren't? Can I escape prosecution if I refer to someone by the clinical name for a reproductive organ rather than the slang for it? Some words have different meanings given the context and community standards. Thus, setting out a hierarchy of filth would be impossible, given that, as the court recognized in the Cohen case, "one man’s vulgarity is another’s lyric."

It should be clear that while profanity is often unwelcome, it is constitutionally protected speech. Standing alone, dirty words don't fall within the classes of unprotected speech (incitements to violence, obscenity, libel, threats), so citizens shouldn't be prosecuted more harshly for using them in their own home.

Ginger Breitzman richly deserves prison time for her acts of cruelty against her son. But, for the sake of profanity-users everywhere, giving her extra time for swearing would be complete bull----.

Christian Schneider is a Journal Sentinel columnist and blogger. Email cschneider@jrn.com. Twitter: @Schneider_CM