April 19, 2006
Fairman's Fuck Jurisprudence
First Frankfurt's philosophical exegesis of bullshit, now Fairman's jurisprudence of fuck. OSU law prof Christopher Fairman distributed Fuck on SSRN last month. The article, Texas law prof Brian Leiter notes, was rejected by Kansas Law Review only twenty minutes after it was submitted!
Abstract: This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo word. The taboo is so strong that it compels many to engage in self-censorship. This process of silence then enables small segments of the population to manipulate our rights under the guise of reflecting a greater community. Taboo is then institutionalized through law, yet at the same time is in tension with other identifiable legal rights. Understanding this relationship between law and taboo ultimately yields fuck jurisprudence.
Hat tip to Paul Caron, TaxProf Blog.
TrackBack URL for this entry:
Listed below are links to weblogs that reference Fairman's Fuck Jurisprudence:
Judging from the abstract, Kansas was right to reject the article. It's simplistic. "Fuck" is certainly not taboo. I'd say it's colloquial. For a far subtler, more genuine discussion of the issues purportedly treated in this article, see Sanford Levinson's The Pedagogy of the First Amendment: Why Teaching About Freedom of Speech Raises Unique (And Perhaps Insurmountable) Problems for Conscientious Teachers and Their Students, 52 UCLA L. Rev. 1359 (2005). Levinson does note "the remarkable significance attached to the use of certain words--fuck perhaps offering the paradigm case--regardless of context." "Remarkable significance" is not taboo, but I also think Levinson's judgement fails here: there is a discernible context in which "fuck" is remarkably significant, a context populated by learned folk who feign not to stoop to base language. (Let's call them hypocrites.) I can think of other (racist, hateful) words that, in other contexts, are far more remarkably significant than fuck. Contra Fairman, "fuck" wields little "power" legally, except perhaps in situations like those mentioned by Levinson: the Fuck the Draft case, the George Carlin FCC case.
Among Levinson's conclusions regarding the careful deployment of the use of such words is this: "I believe, therefore, that anyone teaching courses on freedom of speech must assign to students sexually explicit and, indeed, pornographic materials and hold them responsible for the kinds of preparation involved with any other topic." Indeed. This is, for example, precisely one of the ways by which Andrea Dworkin and Catharine MacKinnon have tried to accomplish their pedagogical missions, notwithstanding the criticism of hypocrites who find it ironic, and therefore somehow fatal to their claims, that MacKinnon and Dworkin have used the very language that they hold out as injurious. We're all big boys now, aren't we? Even the boys on the Court.
Posted by: Dean C. Rowan | Apr 19, 2006 12:59:15 PM