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date: 18 October 2017

Offensive Language Crimes in Law, Media, and Popular Culture

Summary and Keywords

In Australia, Canada, and the United Kingdom, public order laws criminalize the use of swearing, offensive, or abusive language in a public place. Police officers use these laws as tools to assert “their authority” or command respect in public spaces where that authority is perceived to be challenged via the use of profanities such as “fuck.” Alongside the legislature, the executive, and the judiciary, representations of swearing in the media influence ideas about whether swear words warrant criminal punishment. A particular “common-sense” assumption about language (language ideology) prevalent in media representations of offensive language crimes, echoed by politicians and police representatives, is that disrespecting or challenging police authority via “four-letter words” warrants criminal sanction.

However, popular culture can counter dominant ideologies with respect to offensive language, police, and authority. This article examines how the use of swear words in N.W.A’s popular rap song “Fuck tha Police” (1988) and in the HBO television series The Wire (Simon & Burns, 2002–2008) can inform and challenge legal assessments of community standards with regards to offensive language.

Keywords: swearing, profanity, police officers, authority, offensive language, crime, language ideologies, public order, media, popular culture, representation, discourse, rap, hip hop, The Wire

Introduction

This article examines the criminal prohibition of swearing in public, what the article terms “offensive language crimes.” In addition, the article interrogates representations of offensive language crimes in law, media, and popular culture. The article analyzes such crimes and their representation in three jurisdictions: Australia, Canada, and the United Kingdom. In particular, it examines the phenomenon of swearing at police officers, and identifies the circumstances in which such conduct may amount to a criminal offence.

The first part of the article defines the phrase “offensive language crimes” and delineates the scope of the article. Following this, it examines perceptions of swearing in media and popular culture, identifying a number of “folk-linguistic” myths or “language ideologies” that are disseminated through popular culture. The article then outlines relevant legislation and case law in relation to contemporary offensive language crimes. The final part of the article turns to how the criminal punishment of swearing is represented in media discourse and in popular culture; it then offers a concise review of the literature in respect of these topics.

Offensive Language Crimes

Laws that criminalize offensive, insulting, abusive, obscene, or indecent words used in or near a public place exist in various forms in Australia, Canada, and the United Kingdom.1 This article confines its analysis to such criminal offences, termed “offensive language crimes.”

Offensive language crimes do not seek to punish the use of all words that could be construed as offensive in all public spaces. Instead, only the use of select words (primarily swear words) in select spaces—retrospectively determined by individual police officers and magistrates or judges—attract police attention and are deemed worthy of punishment (NSW Ombudsman, 2009).

The adjectives offensive, abusive, insulting, threatening, swearing, and so on are not defined in legislation, nor do statutory lists itemize prohibited words. Instead, vague explanations of the adjectives offensive, abusive, etc., many of which overlap, have been developed by in case law (largely drawing on dictionary sources). For example, a case heard in the Supreme Court of Victoria, Australia, Worcester v. Smith, defines offensive as “such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person” (p. 318). In the United Kingdom, the arresting constable must ascertain the putative reaction of a bystander within hearing of the words, rather than that of the “reasonable person” (Thornton, 1987, p. 42). In any case, it is the police officer who must determine at first instance whether the person’s words were offensive, abusive, or threatening within the meaning of the relevant criminal provision.

Policing Offensive Language

Despite divergent judicial opinions on the criminality of swearing at, or in the presence of, police in public spaces, statistics demonstrate that swearing in public attracts significant police attention (NSW Bureau of Crime Statistics and Research, 2016a, NSW Bureau of Crime Statistics and Research, 2016b; NSW Ombudsman, 2009). An overwhelming majority of offensive language fines and charges are made when four-letter words are used towards, or in the presence of, police (NSW Ombudsman, 2009). In New South Wales (NSW) in 2015, police charged 1,613 adults with using offensive language, with a conviction rate of 88%. Indigenous Australians made up one third of those convicted in NSW in 2015 (despite comprising just three percent of the NSW population) (Methven, 2016b). Police in Australia overwhelmingly use offensive language crimes to target a small selection of words uttered in public: predominantly the words “fuck” or “cunt” (NSW Ombudsman, 2009, p. 57).

Criminologists White and Perrone (2005, p. 46) have suggested that “[e]xcept for the notional “community,” the victim [of offensive language] is almost invariably the police officer” (see also Cunneen, 2001). In NSW, statistics collated in relation to the policing and punishment of offensive language crimes (see, e.g., NSW Anti-Discrimination Board, 1982; NSW Ombudsman, 2009), and academic research relating to the interpretation and policing of these crimes in NSW and Queensland (Cunneen, 2001, 2008; McNamara & Quilter, 2013; Walsh, 2005) support the contention that police officers play a definitive role in determining what is offensive, as “victims,” witnesses and—when issuing on-the-spot fines—the ultimate arbiters of what is criminally offensive (Methven, 2014, p. see, Methven, 2017a; NSW Law Reform Commission, 2012). In particular, police officers use offensive language crimes to target language perceived to undermine “their authority.” Accordingly, offensive language crimes function as a police tool to maintain a social and political order in which police command (and enforce) authority in public space (NSW Anti-Discrimination Board, 1982; J. White, 1997).

In Canada, police have employed the “inexact” (Stribopoulos, 2003, p. 248) charge of causing a disturbance to target street-level nuisances such as intoxication in public places. In such situations, police use § 175(1) as an “ordering device,” especially “against those on the margins of society” (Stribopoulos, 2003, p. 248). Police also use the charge of causing a disturbance as a disciplinary tool against those who “flunk the attitude test”: individuals who refuse to comply with police orders and verbally challenge or undermine police authority (Stribopoulos, 2003, p. 247).

In the United Kingdom, the charge of using abusive or threatening words under § 5(1) is commonly employed by police in cases that amount to less serious incidents of “anti-social” behavior, such as people “persistently shouting abuse or obscenities at passers-by,” and does not require any violence—actual or threatened (Strickland, 2012, p. 4). In 2014, the U.K. Metropolitan Police made 2,292 arrests under § 5(1) (UK Metropolitan Police, Information Rights Unit, 2015).

Offensive Language Crimes in Australia

Offensive language crimes assume several forms in Australia’s states and territories, with wide-ranging punishments. For example in NSW, the use of offensive language in public is proscribed by § 4A(1) of the Summary Offences Act 1988 (NSW). That section provides: “A person must not use offensive language in or near, or within hearing from, a public place or a school.” This crime is one of a number of laws that prohibit the use of offensive, insulting, indecent, or obscene language in or near, or within hearing from, a public place in Australia.2 Section 4A(2) contains a defense of “reasonable excuse,” where the onus is on the defendant to satisfy the court they had a reasonable excuse for conducting themselves in the manner alleged. Examples of what might constitute a reasonable excuse where a profanity is used in a public place include “where the behaviour is almost a reflex action . . . a heavy implement falling on one’s foot, suddenly being hurt or angered by a sudden outrageous outburst or provocation” (Karpik v. Zizis, p. 2056; see also Jolly v. The Queen).

Table 1 encapsulates the various forms of offensive language crimes in the states and territories of Australia, including which words that are deemed punishable, locational requirements, and the punishments attached to the offences (Methven, 2017a).

Table 1. Offensive Language Crimes in Australia

Legislation and Jurisdiction

Words Punishable

Location

Punishment (monetary fines are in AUD)

Crimes Act, 1900 (ACT) § 92

Riotous, indecent, offensive, or insulting behavior

In, near, or within the view or hearing of a person in a public place

$1,000

Summary Offences Act, 1988 (NSW) § 4A

Offensive language

In or near, or within hearing from, a public place or a school

$660 fine or a $500 criminal infringement notice (CIN)

Summary Offences Act, 1978 (NT) §§ 47 and 53

Profane, indecent, obscene, threatening, abusive, or objectionable words, offending, or causing substantial annoyance to a person

In or within the hearing or view of any person in any road, street, thoroughfare, or public place

$2,000, six months imprisonment, or CINs of $144 (profane, indecent, or obscene words); $288 (threatening, abusive, or objectionable words, offending or causing substantial annoyance); or $432 (obscene language)

Summary Offences Act, 2005 (Qld) § 6

Offensive, obscene, indecent, or abusive language

The person’s behavior must interfere, or be likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public

$1,100, six months imprisonment, or police may issue a CIN of $110

Summary Offences Act, 1953 (SA) §§ 7 and 22

Offensive, threatening, abusive, or insulting, indecent, or profane language

In a public place or a police station (profane or indecent language are punishable if audible from such a place, which is audible from a public place or neighboring or adjoining occupied premises, or the person intends to offend or insult any person)

$1,250 or three months imprisonment (for offensive, threatening, abusive or insulting language) or $250 (indecent or profane language)

Police Offences Act, 1935 (Tas) § 12

Profane, indecent, obscene, offensive, or blasphemous language; or threatening, abusive, or insulting words

In any public place, or within the hearing of any person in that place

Three penalty units or three months imprisonment

Summary Offences Act, 1966 (Vic) § 17

Profane, indecent, or obscene language; or threatening, abusive, or insulting words

In or near a public place or within the view or hearing of any person being or passing therein or thereon

1st offence: 10 penalty units or two months imprisonment; 2nd offence: 15 penalty units or three months imprisonment; 3rd or subsequent offence: 25 penalty units or six months imprisonment. Police may also issue a CIN of $295.22

Criminal Code Act, 1913 (WA) § 74A

Insulting, offensive, or threatening language

In a public place; or in the sight or hearing of any person in a public place; or in a police station or lock-up

$6 000 or a CIN of $500

In Australia, judicial perspectives vary as to whether swearing at, or in the vicinity of, police should amount to a criminal offence (see Heanes v. Herangi; c.f. Police v. Butler; Coleman v. Power). In the Supreme Court of Western Australia case Heanes v. Herangi, Johnson J found that laws that criminalize disorderly conduct, including offensive language, play a legitimate role in preventing swear words from “incit[ing] others to involve themselves in challenging the authority of the officers” (Heanes v. Hearangi, p. 177). A number of courts in the state of Queensland have similarly held that police officers deserve protection in the course of their duties from “disorderly or offensive or threatening conduct which is likely to interfere with their peaceful passage through a public place” (Atkinson v. Gibson; Green v. Ashton; Kris v. Tramacchi, referring to the offence of public nuisance in the Summary Offences Act 2005 [Qld] § 6).

Several criminal law scholars, judges, and practitioners, however, have reasoned that police should be less sensitive or reactive to swear words than (other) members of the public (see, e.g., R. White, 2002, p. 30; Wootten, 1993). In the High Court of Australia, Gummow and Hayne JJ have suggested that “the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament, police officers must be expected to resist that sting of insults directed to them” (Coleman v. Power, p. 59). Justice Kirby argued in that case that police officers “like other public officials are expected to be thick skinned and broad shouldered in the performance of their duties” (p. 78). These opinions reflect the position articulated by the U.K. Divisional Court in DPP v. Orum, elucidated below.

Offensive Language Crimes in the United Kingdom

In England and Wales, § 5(1) of the Public Order Act 1986 (UK) prohibits the use of threatening or abusive words within the hearing or sight of a person likely to be caused harassment, alarm, or distress thereby. The term “insulting” was removed from the categories of language made punishable by § 5 in 2014 (Crime and Courts Act 2013 [UK] § 57). Additional offences in the Public Order Act 1986 (UK) target more serious examples of threatening, insulting, or abusive speech and breaches of the peace, including where the use of threatening, abusive, or insulting words is intended or likely to stir up racial hatred (see Public Order Act 1986 [UK] ss 4, 4A and 18[1]).

An offence under § 5 may be committed in public or private; however, no offence is committed where words are used by a person inside a dwelling house and the other person is also inside that or another dwelling (s 5[2]). The prosecution must establish that the person intended their words to be, or were aware that their words may be, threatening, abusive, or disorderly (s 6[4]). The maximum penalty for the use of threatening or abusive words is a £1,000 fine (Public Order Act 1986 [UK] § 5[6]; Criminal Justice Act 1982 [UK] § 37). Police officers have been advised to give prior warning before making an arrest under § 5, given that the failure to do so may disproportionately interfere with the right to freedom of expression under article 10 of the European Convention on Human Rights (U.K. College of Policing, 2013, p. 7).

There must be a person likely to be caused harassment, alarm, or distress by the words or conduct within the sight or hearing of the defendant. That person can include a police officer; however, a court may have regard to the fact that police should be “wearily familiar” with swearing that may be characterized as “disorderly,” and thus have a higher tolerance to such words (DPP v. Orum). In DPP v. Harvey, Bean J stated that the defendant’s words “fuck you” and “fuck off” were potentially abusive, whether the addressee of the words was a police officer or a member of the public (Harvey v. DPP, para 6). However, the relevant officer must have been, or must have been likely to be, caused harassment, alarm, or distress (Harvey v. DPP, para 12).

Offensive Language Crimes in Canada

Section 175(1) of the Criminal Code of Canada (“Criminal Code”) makes it an offence to “cause a disturbance in or near a public place” by, inter alia, “fighting, screaming, shouting, swearing, signing, or using insulting or obscene language.” The crime of causing a disturbance has two elements (R v. Lohnes):

  1. 1. The commission of one of the enumerated acts (including “swearing,” “shouting,” “screaming,” or “using insulting or obscene language”), which

  2. 2. Causes a disturbance in or near a public place.

The offence cannot be committed if the defendant is in a dwelling house (s 175[1][a]). Thus if a person screams or shouts obscenities while inside a house, that person cannot be convicted under § 175(1). The offence is punishable on summary conviction, with a maximum sentence of imprisonment for six months or a fine of CAD$5,000.

Section 175(1) is noteworthy for the breadth of conduct or language that it criminalizes, including “swearing” (although the term “swearing” is not defined in the Criminal Code), provided that such conduct causes a disturbance in a public place. The 1975 case of R v. Clothier held that swearing includes the use of bad, obscene, or offensive language. Charges for causing a disturbance can rely solely on police testimony (Ericson, 1982, p. 22), but that testimony must demonstrate that the swearing, shouting, etc. caused a disturbance.

Courts in Canada have interpreted this provision narrowly, so that the disturbance caused by the words or conduct must amount to more than “the mere disturbing of the peace or tranquility of one person’s mind” or more than “a mere emotional upset” (R v. Lohnes). In the 2014 case heard by the Court of Appeal of Ontario, R v. Kukemueller, Sharpe JA (Gillese and Rouleau JJA concurring) reiterated the governing principle emerging from the case law with respect to the offence of causing a disturbance, that: “Generally speaking . . . shouting obscenities at police officers is not a disturbance in and of itself” (at para. 23, citing R v. Swinkels, para. 18). His Honor stated (para. 27):

While I certainly do not condone yelling obscenities at the police, the issue for this court is not whether the conduct of the appellant was obnoxious or deplorable but whether it was criminal. In my view, it was not, and it follows that this appeal should be allowed and the conviction for causing a disturbance set aside.

This reasoning is consistent with recent Canadian cases (R v. Swinkels; R v. Osbourne; R v. Peters; R v. Wolgram; R v. LA), which have held that merely swearing or yelling in the presence of, or towards, police officers is unlikely to satisfy the element of “causing a disturbance.” The defendant’s conduct must also give rise to an externally manifested interference with the ordinary and customary use of premises by the public. This second element of the § 175(1) offence—an overtly manifested disturbance—renders it narrower in scope than its Australian and U.K. counterparts.

The overriding proposition emanating from case law on offensive language crimes in Australia, the United Kingdom, and Canada is that, although swearing at police may be considered rude or disrespectful, it is not always criminal. Police are generally expected to withstand “fleeting expletives” uttered by a person who may be anxious, upset, frustrated and/or intoxicated (see, e.g., Coleman v. Power [per Kirby J]). p. 78). However, the law on this question—at least in Australian jurisdictions—is not yet settled; recent case law from Queensland and WA suggests that police officers warrant a greater level of respect than “civilians” in public space; that swearing undermines police authority; and, that the authority of police in public space should be respected and maintained (see Kris v. Tramacchi; Atkinson v. Gibson; Green v. Ashton; Heanes v. Herangi).

Having summarized the ambit of, and commonalities among, offensive language crimes in Australia, the United Kingdom, and Canada, the following part of this article examines ways in which media discourse conceptualizes swearing at police, and legitimizes its criminal punishment. In particular, it examines the language ideology that swearing at police warrants criminal punishment because it challenges or undermines an unequal—yet desirable—power dichotomy, whereby police exercise control over other members of the public in public space.

Language Ideologies and Representations of Swearing

The term language ideologies describes tacit or common-sense judgments about how language works (Eades, 2010, p. 241). Language ideologies are concocted without recourse to expert linguistic (or other academic) research. Instead, they are created and rehashed through repetition, and over time, assume the character of being natural or logical, making these judgments difficult to challenge (Blommaert, 2005, p. 253; Eades, 2010, pp. 241–242). Members of the media, the legislature, and the criminal justice system play an influential role in legitimizing ideas about offensive language, including that swearing deserves criminal punishment (Methven, 2016a, p. 122).

Popular language ideologies articulated in the law, the media, and popular culture (Allan & Burridge, 2006; Burridge, 2010b; K. Jay & Jay, 2015; Methven, 2016a, 2017a; Mohr, 2013; Wajnryb, 2005) include that:

  • Swear words are inherently or naturally disgusting, dirty, or sexual.

  • Swear words are contagious, with the habit of swearing something that one can catch as if catching a cold.

  • Swear words do not comprise part of “Standard English.”

  • It is possible—and indeed desirable—to rid the English language of swear words.

  • Swear words are only used by a lower class and poorly educated section of society.

  • Bad people use bad language.

  • Slipping language standards lead to increased moral depravity and/or social disorder.

  • Swear words are more worthy of punishment if uttered in public (as opposed to private) spaces.

  • Swear words should be considered more offensive if spoken to an authority figure.

  • Swear words should not be spoken in the presence of the elderly, the religious, women, or children.

  • “Ladies” do not, and should not, swear.

Many of these language ideologies have been discredited by linguists and language historians, including Jay and Jay (K. Jay & Jay, 2015; T. Jay & Jay, 2013), Jay (2015, 1992, 1999), Mohr (2013), Wajnryb (2005), and Allan and Burridge (2006). However, with repetition in the law, media, and popular culture, these uninformed ideas about swearing begin to shape societal perceptions of whether words should be perceived as dirty words and whether their criminal punishment is justified.

A key reason why language ideologies in relation to “dirty words” have thrived in legal, media, and popular discourse is because this category of words has long been considered a taboo or illegitimate subject, unworthy of considered academic scrutiny (T. Jay, 1999, p. 10). This idea is perpetuated in criminal law doctrine, where the question of whether an utterance is offensive or not is solely for the judge to determine, using their everyday understanding of community standards. Also, where a police officer issues an on-the-spot fine for offensive language, the determination of offensiveness falls to that individual officer. These decision makers may therefore apply whichever language ideologies (including those listed above) they see fit when assessing a word’s offensiveness, without substantiating their opinions with empirical evidence (Methven, 2016a, p. 121, 2017a).

Media Depictions of Swearing at Police

Media discourse has a “significant influence” on how crime is portrayed and defined in society (R. White, Haines, & Asquith, 2012, p. 8) and how criminal laws are rationalized as necessary, beneficial, or just. This part of the article focuses on how swearing at police officers is depicted in print and online media. It is argued that media discourse typically positions police officers as authority figures and represents the undermining of police authority in public space, by swearing at police, as criminal. It begins with Australian case studies and following this, examines media perspectives in the United Kingdom and Canada.

One case that attracted considerable media attention in Australia was Police v. Grech, a NSW Local Court case heard in 2010. The facts of that case can be summarized as follows. At approximately 4:40 pm, on November 5, 2009, Senior Constable Adam Royds was standing inside the ticket barrier of Bondi Junction Railway Station in Sydney. A young man, Henry Grech, walked up to the ticket barrier and opened the gate. Royds asked Grech if he had a valid rail ticket, and Grech replied that he was going to the toilet and had just finished a university exam. Royds told Grech that he would be mailing him a fine for entering a restricted area without a ticket. Grech walked off “in a huff” and, when he was about five meters away, uttered the word “prick.” Royds told Grech: “They’ll be giving you a ticket for offensive language as well” (Transcript of Proceedings, 2010; for further discussion, see Methven, 2017a).

On May 3, 2010, Magistrate Robbie Williams heard Grech’s offensive language charge at Waverley Local Court. The police prosecutor submitted that, although the word “prick” was at “the lower end of the scale,” it could be characterized as offensive, and that the word had been “offered for offending the witness, Constable Royd.” The defense solicitor submitted that Grech did not use the word prick with “any sexual overtone” and that he “wasn’t referring to anything that would take it above and beyond the meaning of a nasty person.” His solicitor further submitted that police officers are “more used to hearing offensive language or language which may be arguably offensive than other members of the community.”

In delivering judgment, Magistrate Williams asked what “a reasonable man” would consider offensive in the circumstances (Police v. Grech, p. 5). His Honor noted there was no evidence of children or elderly people present when the word was used. Dismissing the proceedings, Magistrate Williams was not satisfied that a reasonable person would be offended by the word “prick” due to “its current everyday use.” While at its highest, the word used in this context (directed at the police officer) may be deemed “derogative,” Magistrate Williams did not consider the word to be criminally offensive (Police v. Grech, pp. 6–7).

Grech’s acquittal attracted criticism from the Australian tabloid press. Conservative media commentator Andrew Bolt, writing for the Herald Sun, lamented Australia’s “increasingly contemptuous youth . . . so ready to give a gobful to authority” (Bolt, 2010). Bolt blamed the courts for stripping respect from police and compromising “[t]heir authority on the streets.” He argued that magistrates and judges were guilty of double standards in “authorising an abuse of lowly police that they’d probably never forgive if it were aimed at them” (Bolt, 2010). Similarly, Geoff Chambers, writing for the Daily Telegraph, represented Magistrate William’s decision as “condoning” people calling police a “prick.” Chambers quoted NSW Police Association Secretary Peter Remfrey’s reaction to the decision, who argued that the legal system should not be making police “second-class citizens” and “punching bags for society” (Chambers, 2010).

When Magistrate Pat O’Shane dismissed an offensive language charge against 27-year-old Rufus Richardson in 2005, after Richardson had walked up to police patrolling The Rocks in Sydney, “gave them the finger” and said “Youse are fucked,” politicians and media commentators questioned not only her Honor’s acquittal of the defendant, but also her suitability to occupy the position of magistrate. Opinion pieces lamented a decline in respect for police authority. Reporter Ross Eastgate wrote: “Whatever happened to good manners? You know what I mean, the days when people were temperate in their language, were deferential to their elders and had respect for the law and proper authority?” (Eastgate, 2005).

Media reactions to Grech’s and Richardson’s cases highlight a language ideology prevalent in media representations of offensive language crimes, echoed by many politicians and police representatives: that disrespecting or challenging police authority via four-letter words warrants criminal sanction. While youth are represented as disrespecting “police authority” by uttering obscenities, magistrates are depicted as either on the side of police (where they convict an accused), or against them (where they acquit an accused) (Methven, 2017a). This discourse also conflates an acquittal of an offensive language charge with approving swearing at police. As one reporter for the Daily Mail wrote, quoting the U.K. Police Federation Vice Chairperson’s reaction to the decision DPP v. Harvey (discussed above): “This [legal decision] gives the green light for everyone to swear and use disorderly behaviour with police” (Camber, 2011). Such media representations fail to differentiate between an acquittal for a criminal conviction and an indication that it is okay or acceptable to use swear words towards police officers. The discourse stands in contrast to the views outlined by the High Court of Australia in Coleman v. Power, that “the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament, police officers must be expected to resist that sting of insults directed to them” (p. 59).

Comparable media reactions to those previously outlined can be observed in UK media reports of Bean J’s decision in Harvey v. DPP. In the Daily Mail article “Licence to Swear,” the author, Rebecca Camber, transformed (see van Leeuwen, 2008, for discussion of transformations through recontextualisation) the U.K. High Court’s ruling into the following representation:

Yobs should not be punished for hurling obscenities in public—because swear words are now so common that they “no longer cause distress,” High Court judge has ruled. In a landmark judgment, Justice Bean upheld the appeal of a foul-mouthed thug who was convicted “for repeatedly using the f-word while being searched” by police.

(Camber, 2011)

In Camber’s recontextualization (van Leeuwen, 2008) of Bean J’s ruling, people who swear were transformed into “yobs”; the defendant’s phrases “Fuck this man” and “You won’t find fuck all” were transformed into “hurling obscenities in public”; and the defendant, Denzel Harvey, was transformed into a “foul-mouthed thug.” These “negative appraisements” (van Leeuwen, 2008, p. 45) of the defendant, people who swear, and the act of swearing construct an image of society within which only certain undesirable elements of the community swear. This correlates with the language ideology, identified above, that swear words are only used by lower class, poorly educated, and immoral sections of society.

Another language ideology which can be identified in this discourse is that four-letter words are inherently disgusting or dirty. The media rhetoric on offensive language cases is replete with metaphors of disgust: swear words are transformed into “foul” words and “unpleasantries” (Owens, 2007) that can be “unleashed” as a “volley of abuse” (Isle of Man Examiner, 2016) or “hurled” as “torrents of abuse” (Tamworth Herald, 2003). The discourse draws a link between disorderly people and dirty language, by presuming that only an undisciplined “class” of persons is responsible for hurling such abuse: “Presumably this is because swearing has become virtually endemic among a certain class of person” (Clark, 2011). This class threatens to upend the natural order of society whereby police command authority in public space. The logical solution to preventing such disorder is criminal punishment.

Having examined language ideologies in the media which depict swear words as disrespectful, disorderly, and disgusting, the following part of the article examines further assumptions about swear words which emanate from the media. It argues that these media depictions naturalize the notion that swear words warrant criminal punishment.

Slipping Standards?

Rebecca Camber’s Daily Mail article “License to Swear” concludes by quoting then London Mayor Boris Johnson:

Mr. Johnson wants a new offence of “swearing at or abusing a police officer acting in the execution of his or her duty” . . .. He told the Conservative Party conference: “If people swear at the police, they must expect to be arrested.” “If people feel there are no boundaries and no retribution, then I’m afraid they will go on to commit worse crimes.”

(Camber, 2011)

Similarly, Ross Clark, political commentator for the tabloid newspaper The Daily Express wrote of the decision in DPP v. Harvey:

As with broken windows, so with foul language. Allow the police to act on foul language and you send a powerful message that certain standards will be expected on the streets. It is a small step towards reclaiming some of our own streets from criminals who, in the absence of civilised authority, have come to rule them as their personal fiefdoms. “Standards will fall if they are not upheld.”

(Clark, 2011)

One can discern from such representations a reliance on “slippery slope” logic, according to which petty incivilities automatically lead to, at best, declining standards of civility, and at worst, the increased perpetration of more serious crimes. This particular view corresponds to the language ideology that “slipping language standards lead to increased moral depravity and/or social disorder.” This is exemplified by Anne Marie Owens in her report for Canada’s National Post titled “Loss of Civility,” where she laments: “how customary such rudeness has become” (Owens, 2007). The article is concerned with the case of David Williams, who had been charged under § 175(1) of the Criminal Code for causing a disturbance “by swearing, using insulting and obscene language” towards police officer Wendy Sparrow. In the article, Owens posits the rhetorical question: “has civility become a casualty of modern life?” and suggests, without reference to any evidence that corroborates her views, that the English language is deteriorating, and that this linguistic decay is leading to social decay.

These media representations attribute to the act of swearing at police harms that go beyond momentary shock or upset. Swearing at police, according to these media depictions, represents a breakdown in civilization as we know it. The following and final part of this article examines how representations of swearing in popular culture can challenge the assumption that swear words warrant criminal punishment.

Offensive Language Crimes in Popular Culture

The use and prevalence of profanity in popular culture can influence how, and whether, audiences perceive such words as taboo in particular contexts. As legal philosopher Austin Sarat has recognized, images of law in popular culture provide “not just mirrors in which we see legal and social realities in some more or less distorted way. Instead, they project alternative realities” (Sarat, 2011, p. 5). Representations of swearing in film, television, literature, and music can provide alternative perspectives of crime and criminality. Popular culture actively positions its audience to identify with and adopt certain points of view, while rejecting or neglecting others (Sarat, 2011; Silbey, 2012). The audience is expected to empathize with some groups of people, while seeing others as “trustworthy dangerous, disgusting, laughable” (Buchanan & Johnson, 2008, p. 34); to condemn some forms of violence, while experiencing other forms of violence as normal or even desirable; to see some individual’s lives as valuable, and to see other individuals as “expendable” (Buchanan & Johnson, 2008, p. 34; for further discussion, see Silbey, 2012).

This part of the article examines two aspects of representations of swearing in popular culture, and the (de)legitimization of its criminal punishment. First, it describes how swearing at police has been represented through rap to destabilize and challenge police authority. Second, it turns to the use of the word fuck in a scene from the popular television series The Wire, and suggests how representations of the “f-word” in television may shape perceptions of its offensiveness.

Since its introduction to the American cultural scene in the mid-1970s, rap music has been used by black Americans as a means to resist oppression under prevailing ideologies (Martinez, 1997, pp. 266, 272). While acknowledging that the relationship between rap music and dominant ideologies and cultures is not straightforward (particularly given that rap music has been recognized as often embracing and perpetuating consumerism, capitalism, violence, and misogyny), rap has been recognized as giving a voice to urban black American youth and comprising a “form of resistance to and survival within the dominant social order” (Martinez, 1997, p. 272). Political scientist Lakeyta Bonnette writes, with regards to the influence of rap music in the United States, that “rap music represents a ‘hidden transcript,’ a mechanism to assert public opinion and attitudes of the marginalized communities of urban Black and Latino youth” (Bonnette, 2015, p. 15). A number of popular rap songs have drawn attention to injustices perpetrated on minorities at the hands of police, particularly police brutality towards black Americans; police harassment of black Americans; the use of police force at public protests; and, the over-policing of minority and disenfranchised populations (Bonnette, 2015).

“Fuck tha Police”

A ground-breaking rap song that drew attention to the heavy-handed use of police powers against black Americans and challenged police authority is “Fuck tha Police,” written and performed by U.S. west coast “gangster rap group” (Lakeyta, 2015, p. 15) N.W.A (Niggaz Wit’ Attitude). Soon after N.W.A released “Fuck tha Police,” it became a national and international success (Green, 2015; Serpick, 2001). The song was penned by Ice Cube and MC Ren, as a reaction to all five band members being accosted by police in front of their recording studio, a confrontation that ended with N.W.A’s manager vouching for their presence at the studio (Green, 2015).

The lyrics of “Fuck tha Police” subvert the typical makeup of criminal law cases whereby the State performs the role of prosecutor, and black Americans are disproportionately on trial as defendants. Instead, in N.W.A’s subversive reality, group members MC Ren, Ice Cube, and “Eazy-motherfucking-E” (Eazy-E) occupy the position of prosecutors, prosecuting the Police Department (the defendant), while group member “Dr Dre” becomes “Judge Dre,” presiding over the case against the police. The lyrics, framed as the “testimonies” of MC Ren, Ice Cube, and Eazy-E, include:

  • Fuck the police coming straight from the underground,
  • a young nigga got it bad cause I’m brown
  • and not the other color so police think
  • they have the authority to kill a minority.
  • Fuck that shit, cause I ain’t the one
  • for a punk motherfucker with a badge and a gun
  • to be beating on, and thrown in jail.
  • We can go toe to toe in the middle of a cell
  • fucking with me cause I’m a teenager
  • with a little bit of gold and a pager
  • searching my car, looking for the product
  • thinking every nigga is selling narcotics.

Ultimately, the Court (Dr Dre) delivers its verdict: “The jury has found you guilty of being a redneck” while the Police Department protests: “I want justice!” “Fuck you, you black motherfuckers!” The song ends with the repeated refrain “Fuck tha police!” (N.W.A, 1988)

Because of its blunt anti-police and anti-establishment message, the song was deemed a threat to public order after its release (Green, 2015; Waite, 2001). During N.W.A’s subsequent tour, the U.S. Federal government and the Detroit police force threatened legal action if N.W.A. performed “Fuck tha Police” (Green, 2015). Memos in relation to the song and the group were issued by the CIA (Bonnette, 2015, p. 15), and the FBI claimed that the track “encourages violence against, and disrespect for, law enforcement officers” (Cloonan, 1995, p. 357).

N.W.A continued to attract police and political attention when it released its second album Efil4zaggin (“Niggaz4life” spelt backwards) in 1991 (Serpick, 2001). Provincial police in London, Ontario warned that they might charge shopkeepers with selling obscene material if they sold the album. Despite this, it was incredibly popular in Canada, reaching Number 1 on the Canadian Billboard charts in June 1991 (Couch, 1991). In the United Kingdom, the Metropolitan Police raided the plant of the distributor (PolyGram) of the album and seized approximately 22,000 copies of the “obscenity-laced” (Horn, 1991) album Efil4zaggin (Cloonan, 1995, p. 357; Harrington, 1991). The DPP attempted to have the “obscene material” destroyed under § 3 of the Obscene Publications Act 1959 (UK). In the proceedings, Geoffrey Robertson QC, defence counsel for the record company, submitted that, although Efil4zaggin (which contains references to the killing of prostitutes and portrays “women as merely sexual pawns” (Cloonan, 1995, p. 360) “arouses fear, concern, and distaste. It does not arouse lust,” and therefore, it did not satisfy the criteria for obscene material. Robertson also argued that “the mere use of four-letter words does not indicate obscenity” and that strong language is an accepted part of today’s society, referring to the fact that the “f-word” appeared more than 100 times in the Guardian and Independent newspapers in the preceding year (Harrington, 1991). The magistrate accepted this argument, ruling that the album did not “tend to deprave and corrupt” and on November 7, 1991 cleared Efil4zaggin for release in the United Kingdom (Cloonan, 1995, pp. 358–359).

There were, and continue to be, conflicting perspectives as to whether N.W.A and especially its song “Fuck tha Police” unnecessarily inflamed violence towards, and disrespect of, police; or whether the lyrics imparted an important social message in illuminating issues of structural inequality, including unequal treatment of black and white Americans by law enforcement (Forman, 1990). Yet there is no doubt that the song ensconced the phrase “Fuck the Police” into popular vernacular. Further, N.W.A’s popular album releases Straight Outta Compton and Efil4zaggin further acclimatized listeners to profanity-laden hip hop lyrics. N.W.A’s song “Fuck tha Police” and its widespread reception also legitimized subversive views towards police and their occupation of a position of relative power in public space vis-à-vis disenfranchised black youth in urban America. The song urged its audience to view police authority as subject to contestation—to view respect towards police as something that should be earned rather than automatically given—and reminded listeners that police can weaken their own claims to respect and authority in public space by discriminating against minority groups.

Police Vocabulary in The Wire

Popular culture also influences how, and whether, audiences perceive certain words as taboo or unmentionable in particular contexts, and ultimately criminal. David Simon’s television series The Wire (2002–2008), produced and set in the post-industrial neighborhood of West Baltimore, offers viewers a complex view of drug and murder investigations conducted by the Baltimore Police Department. Unlike “standard cop shows,” The Wire forces its audience to consider the interweaving channels involved in, and multidimensional causes of, crime, including “the wider symbiotic relationship between the police, the schools, the street corner, the various levels of government, the media, and other institutions” (Bandes, 2010, p. 439).

The television series portrays police as a group who use swear words in abundance, depicting a reality in which expletives comprise an essential—and highly adaptable—component of a police officer’s vocabulary. And being a cable television show (as opposed to a publicly broadcast show), the characters in The Wire were able to employ “colourful language” that more accurately reflected “cop-speak” (Chare, 2011, p. 22; for a discussion of the features of “cop-speak,” see Fox, 1993). Art historian Nicholas Chare contrasts the soundtrack of The Wire to the “unrealistic” account of police vocabulary given in The Shield (2002–2008), a show “ostensibly being about dirty cops,” which uses expletives sparingly, with “the word ‘shit’ constituting the limit of a police officer’s swearing” (2011, p. 22). Chare argues that the absence of spoken “cunts” and “fucks” in police officers’ vocabulary in mainstream crime dramas means that these dramas provide a “sanitized sonic environment” for listeners (2011, p. 22). Unlike these sterilized crime dramas, The Wire offers a more genuine “acoustic account” of the speech of the police and the policed, an account in which “both sides of the law swear frequently” (Chare, 2011, p. 22).

While profanity features extensively on The Wire, a notable scene for its sheer abundance of profanity is in the episode “Old Cases” (Simon & Burns, 2002; Episode Four, Season One). In the scene, Detectives Jimmy McNulty and William “Bunk” Moreland reconstruct a homicide through using a combination of astute observation, cultivated detective skills and a vocabulary limited to few other expressions than the exclamations “Fuck,” “Motherfucker,” “Motherfuck,” “Fuckity, fuck, fuck fuck,” “Oh fuck,” “Fuck it,” “Fuckin eh,” and “What the fuck?” (“Old Cases,” Simon & Burns, 2002). As Chare observes, much of the humor of the scene derives from the repeated use of this expletive, “the meaning of which varies dependent upon shifts in context and intonation” (2011, p. 20). The scene shows the highly malleable and communicative nature of the “f-word,” and its ability “to carry a number of possible connotations . . . dependent upon the tone of the officer’s voices” (Chare, 2011, p. 20).

Due to its more realistic account of typical police vernacular, the “Fuck” scene in The Wire and other representations of swearing in popular culture can be used by judges to inform their assessments of community standards with regards to the use of offensive language (see also Methven, 2017b). Instances of swearing in music, film, and television constitute how judges perceive the offensiveness of expletives. For instance, when assessing community standards in relation to the word “fuck” in the 2003 NSW Local Court case, Police v. Butler, Magistrate Heilpern referred to the fact that the word “fuck” was repeatedly used in song lyrics aired on the Australian radio station Triple J; that a (then recent) broadcast of the television show Sex in the City included the words “fuck off,” “fucking,” and “cunt”; and, that the television program The Sopranos used the word seventy-one times in a single episode (Police v. Butler, pp. 22–29). In the entire judgment, Magistrate Heilpern mentioned the word “fuck” and its derivatives fifty-four times, and ultimately found the defendant not guilty of having used offensive language. The judgment, and its reception in subsequent cases (see, e.g., Police v. Paton), shows how popular culture has already impacted on legal perceptions of swearing and its criminality.

Conclusion

This article has examined representations of swearing and offensive language crimes in law, media, and popular culture. By outlining offensive language legislation and case law in Australia, the United Kingdom, and Canada, it has shown the broad scope and elasticity of such crimes. Further, the article discussed a number of decisions that have emphasized that swearing at police should not automatically be deemed criminal. Rather, police officers are expected to be “thick skinned and broad shouldered in the performance of their duties” (Coleman v. Power, p. 78).

The article identified within a number of media articles and commentaries language ideologies about swearing. The overriding message of this media discourse was that swearing at police officers challenges their authority in public space, and that the criminal punishment of swear words is necessary to preserve an unequal social order, in which members of the community, particularly young people, defer to police authority. This “common sense” discourse also postulated a correlation between the use of swear words by a “section of society” (also described as a “certain class of person,” “yobs,” and “thugs”) and slipping standards in civility, and purported to establish—without reliance on any empirical evidence—a causal relationship between “foul language” and the commission of more serious crimes.

The final part of the article examined representations of swearing in popular culture, via a discussion of N.W.A’s song “Fuck tha Police,” and a scene from the television series The Wire involving few words other than “fuck.” It argued that popular culture can influence legal and social perceptions of swearing at police. Representations of swearing in popular culture can show how profanity features abundantly in the police vernacular; can discredit the notion that police officers are shocked or outraged by four-letter words; and, can challenge the idea that swearing at police warrants criminal punishment.

Literature Review

Offensive Language Crimes in Australia, the United Kingdom, and Canada

An in-depth analysis of the legal elements of offensive language and conduct crimes in NSW has been conducted by criminal law scholars Luke McNamara and Julia Quilter, whose articles redress the lack of judicial and academic scrutiny of these crimes (McNamara & Quilter, 2013, 2014). McNamara and Quilter have argued that offensive language crimes should be abolished due a number of factors, including their breadth and propensity for arbitrariness (McNamara & Quilter, 2014). A practical discussion paper for criminal defense lawyers on offensive language crimes in NSW has been written by criminal law barrister Mark Dennis (Dennis, 2011). Historical aspects of offensive language crimes have been examined by legal academic Jo Lennan (2006a, 2006b, 2007) and legal historian Michael Sturma (1983).

A body of literature has examined whether offensive language crimes infringe the freedom of political communication that has been implied into the Australian Constitution (Gray, 2012; Lennan, 2006a). Tamara Walsh, a scholar in law and social justice, has used empirical and theoretical analyses to reveal the inequitable operation public nuisance offenses in Queensland (Walsh, 2004, 2005, 2006, 2008). Walsh has found that Indigenous Australians, people experiencing psychiatric, mental, or cognitive impairments, and people who are homeless, have been disproportionately represented amongst those charged with public nuisance-type offences.

A number of guidelines, manuals, and books elucidate the key legal elements and purported operation of threatening, insulting, and abusive language crimes in the Public Order Act 1986 (UK) (see Association of Chief Police Officers (UK), 2010; Card, 1987; Strickland, 2012; Thornton, 1987; UK College of Policing, 2013). Appellate lawyer Thomas Slade (2014) discusses the case of R v. Kukemueller in relation to the question of whether swearing at police amounts to the offence of causing a disturbance.

Criminological and Other Perspectives on Policing Offensive Language

Criminologists Chris Cunneen and Rob White, former Commissioner of the Australian Royal Commission into Aboriginal Deaths in Custody, Hal Wootten, and investigative journalist Jenny Brockie, have documented how Australian police have disproportionately arrested Indigenous Australians for using swear words such as “fuck,” “prick,” and “cunt,” despite the fact that these words are frequently spoken both among police officers and by police officers to members of the public (Wootten, 1991, 1993; Brockie, 1992; Cunneen, 2001; R. White, 2002). Rob White (2002), sociolinguists Diana Eades (2008, 2010) and Brian Taylor (1995), and anthropologist and Indigenous scholar Marcia Langton (1988), have explained how the criminal justice system, in punishing Indigenous people for swearing, penalizes Indigenous Australians for words used in routine communication (Eades, 2008, pp. 70–71).

An edited collection of works on the regulation of offensive behavior (Simester & Von Hirsch, 2006a) in the United Kingdom analyzes the operation of the § 5 offense, particularly its impact on marginalized populations (especially youth and people in public housing estates) (Burney, 2006), and the regulation of “incivilities” through two-step prohibitions such as anti-social behavior orders, colloquially referred to as “ASBOs” (Simester & Von Hirsch, 2006b). Richard Ericson (1982) has demonstrated the uneven use by Canadian police of arrest powers and minor charges such as that of causing a disturbance (§ 175(1)) against those on the margins of society.

Linguistic Literature on Swearing and Language Ideologies

Eades (2010, 2012) has critically examined the impact and prevalence of language ideologies in the law. Linguists Ruth Wajnryb (2005) and Kate Burridge (2010a, 2010b) have demonstrated how common sense ideas about “linguistic cleanliness” in relation to swear words pervade media, political, and everyday discourse; swearing being a topic on which “everyone seems to have a viewpoint” (Wajnryb, 2005, p. 7). Methven has applied their ideas about language ideologies to examine how judicial discourse on swear words naturalizes “folk-linguistic” beliefs that profanities are inherently sexual or dirty (Methven, 2016a, 2017b).

A number of works have examined the history, semantics, pragmatics, and pervasiveness of swear words in the English language. Notable among these include articles and books written from the perspectives of linguists (Montagu, 1967; Wajnryb, 2005; Allan & Burridge, 2006; Burridge, 2010a, 2010b), psycholinguistics (K. Jay & T. Jay, 2013, 2015; T. Jay, 1992, 1999), and English language historians (Hitchings, 2011; Hughes, 1991; McEnery, 2006; Mohr, 2013).

Criminal Justice and Popular Culture: The Wire andFuck tha Police

Martin Cloonan (1995), researcher in popular music politics, has examined attempts in Britain to silence poplar music, including that of N.W.A, via obscenity law. In the United States, patent attorney Jon Wolfe (1992) has considered whether rap music, which makes explicit references to sex, violence, and profanity, is protected by the First Amendment. Sociologist Theresa Martinez (1997) has identified rap music as a form of oppositional culture, paying particular attention to the lyrics of political and “gangsta” rappers from the 1980s and 1990s.

According to art historian Nicholas Chare (2011), The Wire engages sound and vision to present a nuanced portrayal of the impact of technology on police culture. Chare argues, however, that this nuance is lacking when it comes to the show’s paucity of female voices. The Wire mutes women’s voices: “they are mainly trapped in secondary roles, rendered inaudible, silenced” (Chare, 2011, p. 30). In a short essay exploring The Wire’s portrait of the criminal justice system (Bandes, 2010), legal scholar Susan Bandes commends its “central acheivement” in “replac[ing] the flat caterogies of standard police procedurals with a fully realized world populated with morally and emotionally enhanced characters” (2010, p. 438). In every case, Bandes explains, The Wire shows the viewer “how moral choice is shaped and constrained by systemic forces” (2010, p. 438).

Further Reading

Allan, K., & Burridge, K. (2006). Forbidden words: Taboo and the censoring of language. Cambridge, U.K.: Cambridge University Press.Find this resource:

Chare, N. (2011). Policing technology: Listening to cop culture in The Wire. Journal for Cultural Research, 15(1), 15–33.Find this resource:

Cloonan, M. (1995). “I fought the law”: Popular music and British obscenity law. Popular Music, 14(3), 349–363.Find this resource:

Martinez, T. A. (1997). Popular culture as oppositional culture: Rap as resistance. Sociological Perspectives, 40(2), 265–286.Find this resource:

McNamara, L., & Quilter, J. (2013). Time to define the cornerstone of public order legislation: The elements of offensive conduct and language under the Summary Offences Act 1988 (NSW). University of New South Wales Law Journal, 36, 534.Find this resource:

Simester, A. P., & Von Hirsch, A. (2006a). Incivilities: Regulating offensive behaviour. Portland, OR: Hart.Find this resource:

Wajnryb, R. (2005). Expletive deleted: A good look at bad language. New York: Simon & Schuster.Find this resource:

Walsh, T. (2005). Offensive language, offensive behavior, and public nuisance: Empirical and theoretical analyses. University of Queensland Law Journal, 24, 123.Find this resource:

White, J. (1997). Power/knowledge and public space: Policing the “Aboriginal towns.” The Australian and New Zealand Journal of Criminology, 30, 275.Find this resource:

White, R. (2002). Indigenous young Australians, criminal justice, and offensive language. Journal of Youth Studies, 5, 21–34.Find this resource:

Police dramas on television; cultural studies approaches to the study of crime in film and on television; crime news in newspapers; crime dramas as social science fiction; transgressive imaginations; ideology in the crime genre; the cultural politics of Indigenous struggles and Aboriginal riots;

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Obscene Publications Act, 1959 (UK).Find this resource:

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Police Offences Act, 1935 (Tas)Find this resource:

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Summary Offences Act, 1978 (NT)Find this resource:

Summary Offences Act, 1988 (NSW)Find this resource:

Summary Offences Act, 2005 (Qld)Find this resource:

Vagrancy Act, 1849 (NSW)Find this resource:

Conventions

European Convention on Human Rights

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Notes:

(1.) Crimes Act, 1900 (ACT) § 392; Summary Offences Act 1988 (NSW) § 4A; Summary Offences Act 1978 (NT) §§ 47 and 53; Summary Offences Act, 1966 (Vic) § 17(1)(c); Summary Offences Act, 2005 (Qld) § 6; Summary Offences Act, 1953 (SA) § 7(1)(a) (‘SO Act (SA)’); Police Offences Act, 1935 (Tas) § 12; Criminal Code Act, 1913 (WA) § 74A. Alongside these, there are a number of specific laws that prohibit, for example, speech on public transport or in a park. See, for example NSW Law Reform Commission, “Penalty Notices” (Report, 2012) 13 [1.36].

(2.) Offensive language crimes are a state issue in Australia as Australia (like Canada) is a federation. Section 51 of the Australian Constitution provides the heads of power, under which the Australian Commonwealth Parliament has the power to make laws. However, the Commonwealth Parliament does not have a direct power under § 51 of the Australian Constitution to make laws with respect to criminal offences. Thus the power to make laws with respect to matters of criminal law and procedure rests with Australian states and territories.