By Patricia Calhoun
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By Melanie Asmar
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This past June, Daniel Lewis, a twenty-year-old singer with the band Dysarranged, grabbed a mike and uttered these timeless words: "I want to dedicate this song to the Castle Rock police. I hate you fucking pigs."
The pigs never got to hear Lewis's lullabye: They unplugged the band and arrested Lewis, who was charged with disturbing the peace -- "disturbing the almighty peace," as Bruce Springsteen says -- under a town ordinance that prohibits "loud or unusual noises, or tumultuous or offensive language."
Never mind that few respectable rock-and-roll musicians have ever played a concert without using "fuck" in one of its many useful forms. Certainly, no credible rock-and-roll critic has ever reviewed a concert without using "fucking" as an adjective. In October, the Federal Communications Commission determined that Bono's use of the word "fucking" on live TV -- specifically, his exclamation on last year's Golden Globes that "this is really, really fucking brilliant" -- did not violate FCC indecency or obscenity rules, since Bono used the word as an adjective, not as a reference to "sexual or excretory activity or organs." (FCC chairman Powell is now trying to get that decision overturned.) Even Senator John Kerry used "fuck" in an interview with Rolling Stone last month, which could have made all the difference at the Iowa caucuses Monday night. Yes, people in the Midwest say "fuck." It's just so fucking handy.
And certainly never mind that Lewis said it at the dedication of a skate park -- not a Gymboree.
Castle Rock still went after Lewis with everything it had, charging him criminally. And attorney Dan Recht fired back with everything he had, including this: "The state has the power to protect its citizenry from actual harm and thus has the power to outlaw one yelling 'fire!' in a crowded theater. However, yelling 'fuck!' in a crowded theater does not create a clear and present danger to anyone and thus cannot be outlawed. Although they are both four-letter words that start with F, the distinction is constitutionally significant."
But Recht wasn't the first lawyer to drop that F-bomb. That honor goes to public defender Eric Vanatta, who represented a junior-high student charged with "interference with staff, faculty or students of educational institutions," a Class 3 misdemeanor, after the boy was accused of smoking in the bathroom and responded by calling his principal "fucker, a fag, and a fucking fag." On July 1, Vanatta filed a motion in Larimer County District Court to dismiss the charges based on "the constitutionality of fuck, fucker and fucking fag."
"In order to provide a context for the alleged crime," Vanatta wrote, "we must first examine the history of Fuck and its evolution in society." And so he did, in a seven-page document that took "fuck" from its first recorded use, in 1500 (in the English-Latin poem Flen Flyss), to its accepted use in movies and music -- and beyond. "A search of internet web sites suggests Fuck is a more commonly used word than mom, baseball, hot dogs, apple pie and Chevrolet," he said, citing a google search on June 25, 2003, that resulted in these hits:
Fuck: 24,900,000 hits (approximate)
First Amendment: 933,000
Hot dogs: 607,000
Freedom of speech: 542,000
Apple pie: 308,000
Sticks and stones may break my bones: 7,360
"Fuck possesses incredible versatility," Vanatta noted. "It can be a noun (you fuck), a verb (everything Billy touches, he fucks up), an adjective (I'm really fucking broke), an adverb (I've been fucking drinking too much), an exclamation (holy fuck, Batman) or question (what the fuck?). This versatility...may explain why Fuck can be used in almost any sentence at any time no matter what the circumstances and why the word has become almost commonplace in United States culture and society.
"The question presented by the case at bar is not whether Fuck is a desirable or attractive word, or whether a juvenile should be calling his principal a fucker or a fucking fag. Rather, the question is one of constitutionality and whether the State can criminalize the speech in question by application of the statute at issue. The prosecution is attempting to hold a juvenile criminally responsible for the age-old tradition of name-calling. Although Mr. X could have selected a more desirable choice in prose, such as 'I respectfully dissent' or 'I am disappointed with your attitude, sir, and politely ask you to cease and desist,' the use of the words fucker and fucking nonetheless do not amount to criminal conduct in this particular context."
Besides, they're protected, if ugly, speech.
Vanatta concludes: "Fuck is certainly a controversial word that may be appropriate in certain venues and locales (Florida Elections Commission, speed eating contests, public defender offices) and may be inappropriate in others (weddings, Chuck-E-Cheese pizza parlors, district attorney offices). Some people may believe it is always inappropriate. But in all but a very few circumstances, the First Amendment to the United States Constitution prohibits our government from making that determination. This case falls outside of those very limited circumstances and, as such, no conviction can result from Mr. X's alleged statements."
And no conviction did -- but not, alas, because Vanatta was able to make his compelling argument in open court. Instead, he reached a plea deal for his client. But his inspirational motion lives on -- at www.thesmokinggun.com, the Web site that gave it the prestigious Legal Document of the Year Award when 2003 was barely half over, and also in Recht's pleadings in the Castle Rock case, for which he cribbed unashamedly from Vanatta's legal work.
Sadly, Recht never got to make his case in court, either. "We fought it pretty hard," he remembers. "We had to file a whole series of motions that took a lot of time, explaining why it should be dismissed. The first two times, the judge denied the motions. On the eve of trial, the city attorney dismissed the charges."
And next week, the Castle Rock Town Council will consider amending the town's ordinances to remove the section under which Lewis was charged. "The problem is making it a crime to use offensive language," Recht points out. "That's a clear violation of the First Amendment. This is protected political speech."
The proposal calls for eliminating entirely the wording that refers to "tumultuous or offensive language." "It goes to council for a first reading on January 27," confirms Deanne Durfee, deputy town attorney. "We'll still have a noise ordinance that restricts decibel levels and noises that disturb people -- but not content."
But even as Castle Rock recognizes the constitutionality of free speech, the Colorado Legislature debates the inane HB1078, which could toss owners of bookstores or theater companies in jail if they "allow a minor to review or peruse any material that is harmful" or "exhibit a performance that is harmful to minors" if "a reasonable adult person would find that the material or performance lacks serious literary, artistic, political or scientific value for minors."
Leave it to Representative Ted Harvey, the bill's sponsor, to determine what the fuck constitutes a "reasonable" adult these days. Or a reasonable bill, for that matter -- one that wouldn't throw Tattered Cover owner Joyce Meskis in the slammer for displaying copies of Lady Chatterley's Lover.
"Selling obscenity to minors is already a crime," points out Recht, who testified before the legislature last week. "We have those laws on the book. The Tattered Cover, Kitty's -- nobody can sell obscenity to minors. Adult bookstores don't care about this law; they don't let minors in. It's aimed at mainstream bookstores. It's wrong, and it shouldn't happen."
"The implications are incredibly fascist," says Brian Freeland of the Lida Project, whose current theatrical production just happens to be named Fucking A. "Shop owners are afraid to put up a poster, afraid that the law will come down on them and cite them and fine them. What's next? Are we going to be afraid to print anything?"
Or afraid to stage a play -- even if it is by Pulitzer Prize winner Suzan-Lori Park -- with "fuck" in its title?
"You've got to be kidding me if you're going to start prosecuting people for using the F-word. You're going to have to build lots and lots of jails," says Vanatta, a minor celebrity since his motion went global.
"What people don't realize," he adds, "and what is so scary about cases like this is it might seem minor on the surface -- no one is going to endorse a kid saying this to the cops or his principal -- but where's the next step? It's an incredibly slippery slope. And if you start outlawing it on any level, you've got a government saying what you can and can't say and you can and can't think. And that's just not what the country's built upon."