Court failed to carefully define the speech at issue. It called the speech
“offensively lewd and indecent,” “vulgar and lewd,” and “sexually
explicit” all in the same opinion.
What then is the difference between the Fraser-speech subsets of
lewd, indecent, vulgar, offensive, or sexually explicit? For example,
“lewd” is often defined as “obscene.”
However, under a Miller
definition of obscenity
the word fuck is not obscene because the word
is neither erotic nor contains the essential element of sexuality to be
Consequently, fuck is not likely covered by the lewd
subcategory. As to indecency, we must return to Pacifica and the FCC
to understand its contours.
As far as fuck is concerned, indecency
applies only if one makes the erroneous connection to per se sexual
activity and patent offensiveness.
The only remaining subcategories
to apply to fuck are offensive or vulgar speech, yet confusion also
abounds as to what these terms means.
In the end, neither
classification is helpful in predicting how fuck would be treated.
While I am sure fuck is used by many a student, few reported cases
explore a student’s speech right in this context. Given the outcome with
even non-taboo speech, I see little chance that fuck would find
protection under the current state of the law. However, if fuck were
student-originated, today it would be on a t-shirt. All the recent student
action surrounds t-shirt speech and illustrates the difficulty of
“offensive” or “vulgar” as useful tools for speech regulation.
For example, the Sixth Circuit recently held that an Ohio high
school could ban Marilyn Manson t-shirts as vulgar or offensive speech
The t-shirt starting the brouhaha depicted a “three-
faced Jesus” and the words “See No Truth. Hear No Truth. Speak No
Truth.” On the reverse was the word “BELIEVE” with the L, I, and E
After being told by the principal to change or go home,
the student went home. Defiant, he returned the next three days
donning a different Marilyn Manson shirt; each day he was sent
Id. at 684-85.
See Miller, supra note 372, at 655.
Under Miller, obscenity requires (a) the average person, applying community standards,
would find the work, taken as a whole, appeals to the prurient interest; (b) the work depicts or
describes in a patently offensive way sexual conduct specifically defined by the applicable state
law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value. Miller v. California, 413 U.S. 15, 24 (1973).
, supra note 3, at 61 (“Because of the well-established ‘prurient’ requirement,
foul language and profanity are almost never considered obscene . . . .”).
See supra notes 225-34 and accompanying text (discussing FCC and indecency definition).
This necessarily requires the finding that the material is patently offensive—that is,
explicit, graphic, repeated, and shocking. See supra notes 224-35and accompanying text.
See Miller, supra note 372, at 646-49 (discussing confusion and calling for more precise
definitional categories in order to create a more workable and understandable framework).
See Boroff v. Van Wert City Bd. of Educ., 220 F.3d 465 (6th Cir. 2000).
Id. at 467.
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CARDOZO LAW REVIEW
A split panel of the Sixth Circuit held that under Fraser the
school could ban merely offensive speech without having to apply
Tinker’s substantial and material interference test.
What is most troubling is the court’s methodology. Rather than
explaining why the t-shirts themselves were offensive—where all the
court had to offer was that Marilyn Manson appeared “ghoulish and
creepy”—the court focused on the “destructive and demoralizing
values” promoted by the band through its lyrics and interviews.
Using a judicial version of the transitive property, the court found that
the band promoted ideas contrary to the school’s mission and the t-shirts
promoted the band. Ergo the t-shirts were offensive.
were offensive, the school could ban them.
This type of application
of Fraser leaves virtually no speech off limits as long as it can be traced
back to an ultimate offensive origin.
No speech—except the
Confederate flag that is. Within months of the Marilyn Manson case,
the Sixth Circuit held that a Kentucky high school that suspended two
students for wearing t-shirts with the Confederate flag had to meet
Tinker’s substantial and material interference test before it could
prohibit wearing them to school.
This type of inconsistent, if not downright bizarre, application of
Fraser isn’t isolated. Just as the FCC declares nonsexual uses of fuck as
per se sexual, courts often sexualize other nonsexual language to
enforce a prohibition against the speech. For example, a federal district
court upheld the suspension of a middle school student for wearing a t-
shirt that said “Drugs Suck!” because the message was vulgar and
The court found “suck” had sexual connotations. After
admitting that “suck” was also a general expression of disapproval, the
court found that meaning derivative and “likely evolved from its sexual
Id. at 470-71.
Id. at 467 (ghoulish and creepy); id. at 469-71 (lyrics and interviews).
Following this reasoning, the band’s offensive lyrics include fuck so I suppose the t-shirts
promote fuck so they could be banned as if they said fuck. Giving credit where credit is due, it is
the high school principal William Clifton, who propounds this bonehead argument. See id. at 469-
70. The federal district court and two of the Sixth Circuit panelists buy into it unfortunately.
Id. at 471.
The court rejected the argument that the t-shirt itself wasn’t offensive in comparison to
other t-shirts that promoted bands like Megadeath and Slayer, each with equally explicit lyrics.
See id. at 470; Miller, supra note 372, at 647-48 & n.169 (discussing case). Only the dissenter,
Judge Gilman, seems to recognize the folly of the majority opinion. Judge Gilman points out the
obvious: even if the band’s lyrics are vulgar or offensive, nothing on the t-shirts was. Boroff, 220
F.3d at 472, 473-74 (Gilman, J., dissenting). Unfortunately for fuck, Gilman defines vulgar and
offensive in terms of Pacifica speech and says that if the t-shirts contained those words, the
school could ban them. Id.
See Castorina v. Madison County Sch. Bd., 246 F.3d 536, 540 (6th Cir. 2001).
See Broussard v. Sch. Bd. of Norfolk, 801 F. Supp. 1526 (E.D. Va. 1992).
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meaning only as recently as the 1970s.”
Suck!” had a prurient element subjecting it to prohibition.
sort of reasoning led another federal district court to uphold prohibition
of an anti-drunk driving t-shirt that proclaimed “See Dick drink. See
Dick drive. See Dick die. Don’t be a Dick.”
The court found that
the word “Dick” came within a vulgarity exception to the First
This type of sexualization of nonsexual language serves
as a good predictor of how fuck might be banned by blurring the Fuck
distinction. Given this level of confusion among the courts
on both linguistics and the legal standard of vulgar and offensive
speech, student-initiated use of fuck as free speech seems doomed.
2. Fuck in Teacher Speech
We might see a different outcome if a teacher used the word in
class. Justice Fortas’s famous Tinker line about not shedding
constitutional rights at the schoolhouse gate applied to both students
Surely teachers, cloaked with the tolerance afforded by
must have a safe haven for the use of fuck . I am,
of course, banking on some modicum of personal protection—
especially in the context of legal education. As Professor Levinson put
it, it would be “especially problematic to say that any speech is off
limits when addressing the question of which speech, if any, speech can
ever be ruled off limits.”
Unfortunately, teacher speech exists in a
murky First Amendment environment. As the Second Circuit recently
lamented: “Neither the Supreme Court nor this Circuit has determined
what scope of First Amendment protection is to be given a public
Id. at 1537.
See Pyle v. S. Hadley Sch. Comm., 861 F. Supp. 157, 158 (D. Mass. 1994).
See id. at 159. The state court ultimately struck down the vulgarity clause of the school’s
code on state statutory grounds. See Pyle v. S. Hadley Sch. Comm., 667 N.E.2d 869 (Mass.
1996); see also Pyle, supra note 368, at 586-89 (discussing firsthand involvement in the
Tinker v. Des Moines Ind. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (“It can hardly be
argued that either students or teachers shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.”)
Academic freedom is a concept used to defend a variety of speech and conduct activities.
Academic freedom encompasses a professor’s freedom to teach, freedom to research,
and freedom to publish opinions on issues of public concern. Academic freedom is
rooted in European traditions and in our society’s recognition that “institutions of
higher education are conducted for the common good . . . which depends upon the free
search for truth and its free exposition.”
Stacy E. Smith, Note, Who Owns Academic Freedom?: The Standard for Academic Free Speech
at Public Universities, 59 W
. 299, 307-08 (2002).
Levinson, supra note 1, at 1381.
CARDOZO LAW REVIEW
college professor’s classroom speech.”
Public school teachers
traverse the same uncertain terrain.
Where teacher speech is involved, the Tinker trilogy is often
supplanted by Pickering v. Board of Education.
teacher Marvin Pickering criticized the board of education for its
handling of fiscal matters in a letter to the local newspaper; he was
The Supreme Court held that Pickering’s speech was protected
by the First Amendment because it was of “public concern.”
Pickering so squarely rests on the “interests of the teacher, as a citizen,
in commenting upon matters of public concern,”
it might appear
inapplicable to in-class, taboo language, by a school employee.
Nonetheless, five federal appellate circuits apply Pickering to the in-
class speech of teachers to exclude that speech from any First
Amendment protection whatsoever.
In these jurisdictions, teachers
are obviously stripped of any ability to use First Amendment academic
freedom arguments to protect curricular decisions to use fuck in class.
In contrast, five other circuits apply Kuhlmeier and require a
reasonable relationship to a legitimate pedagogical concern before
permitting schools to silence teacher curricular choice.
even before Kuhlmeier provided an alternative to Pickering, the First
Circuit recognized the academic freedom of high school teachers to use
the word fuck as a curricular decision in Keefe v. Geanakos.
English teacher assigned a reading from Atlantic Monthly that contained
an “admittedly highly offensive . . . vulgar term for an incestuous
He was suspended, risked discharge, and
sought injunctive relief which was denied by the district court. The
First Circuit reversed after conducting its own independent review of
the article and finding it “scholarly, thoughtful and thought-
Chief Judge Aldrich also included the following
Vega v. Miller, 273 F.3d 460, 467 (2d Cir. 2001) (quoting Cohen v. San Bernadine Valley
Coll., 92 F.3d 968, 971 (9th Cir. 1996)).
391 U.S. 563 (1968).
Id. at 564.
Id. at 568.
See Merle H. Weiner, Dirty Words in the Classroom: Teaching the Limits of the First
Amendment, 66 T
. 597, 625-27 (1999) (discussing the circuit split and identifying the
Third, Fourth, Fifth, Ninth, and D.C. circuits as applying Pickering).
Professor Weiner makes a persuasive argument for a new legal standard to protect social
studies teachers who use sexually explicit material in the context of government or legal system
lessons. See id. at 675-83.
See id. at 626-27 (identifying the First, Second, Seventh, Eighth, and Tenth Circuits as
418 F.2d 359 (1st Cir. 1969).
See id. at 361.
With regard to the word itself, we cannot think that it is unknown to
many students in the last year of high school, and we might well take
judicial notice of its use by young radicals and protesters from coast
to coast. No doubt its use genuinely offends the parents of some of
the students—therein, in part, lay its relevancy to the article.
Judge Aldrich recognized the value of studying fuck because of its taboo
The First Circuit revisited the issue again in Mailloux v. Kiley
where another high school English teacher taught a lesson on taboo
words that included writing fuck on the blackboard. Following a
parent’s complaint, he was fired for “conduct unbecoming a teacher.”
While the district court seemed to agree with the testifying experts that
the way Mailloux used the word fuck was “appropriate and reasonable
under the circumstances and served a serious educational purpose,”
divided opinion on the issue compelled the court to fashion a test for
Ultimately, the district court held that it was a
violation of due process to discharge Mailloux because he did not know
in advance that his curricular decision to teach about fuck would be an
affront to school policies.
The First Circuit, after rejecting the route
taken by the district court and opting instead for a case-by case analysis,
nonetheless affirmed the result because the teacher’s conduct was
within reasonable, although not universally accepted, standards and he
acted in good faith and without notice that the school was not of the
Despite these positive outcomes of reason over taboo, don’t draw
the wrong conclusion. Courts that apply the Kuhlmeier test to a
teacher’s in-class use of fuck might well come out the other way. In
Krizek v. Board of Education,
the district court denied preliminary
injunctive relief to an English teacher whose contract was not renewed
Id. (footnote omitted); see also Parducci v. Rutland, 316 F. Supp. 352 (M.D. Ala. 1970).
448 F.2d 1242 (1st Cir. 1971), aff’g 323 F. Supp. 1387 (D. Mass. 1971).
Mailloux v. Kiley, 323 F. Supp. 1387, 1389 (D. Mass. 1971).
Id. Experts from both Harvard School of Education and MIT testified as to appropriateness
of Mailloux’s conduct. Additionally, the district court found that: fuck was relevant to discussion
of taboo words; eleventh graders had sufficient sophistication to treat the word from a serious
educational viewpoint; and students were not disturbed, embarrassed, or offended. Id.
Id. at 1392. The district court crafted the following test:
[W]hen a secondary school teacher uses a teaching method which he does not prove
has the support of the preponderant opinion of the teaching profession . . . which he
merely proves is relevant to his subject and students, is regarded by experts of
significant standing as serving a serious educational purpose, and was used by him in
good faith the state may suspend or discharge a teacher for using that method but it
may not resort to such drastic sanctions unless the state proves he was put on notice
either by a regulation or otherwise that he should not use that method.
Id. at 1393.
See Mailloux, 448 F.2d at 1243.
713 F. Supp. 1131 (N.D. Ill. 1989).
CARDOZO LAW REVIEW
after showing the movie About Last Night to her eleventh graders.
The court described the film as containing “a great deal of vulgarity”
including “swear words” and quoted the dialogue at length illustrating a
liberal use of fuckin ’, fucking , and fuck .
Applying the Kuhlmeier
standard, the court found that the school had a legitimate concern over
vulgarity and could find the film with its frequent vulgarity
inappropriate for high school students.
Consequently, the court
rejected a preliminary injunction because the teacher was unlikely to
prevail on the merits of her First Amendment claim.
Similarly, in Vega v. Miller,
the Second Circuit found that
college administrators had qualified immunity from First Amendment
claims by a college teacher who had been disciplined for permitting a
classroom exercise, initiated for legitimate pedagogical purposes, to
continue to the point where students were calling out a series of
sexually explicit words and phrases. The in-class exercise was a word
association lesson known as clustering in which students select a topic,
then call out words related to the topic, and finally group related words
together into “clusters.”
The students selected “sex” as the topic for
the clustering exercise. Vega then invited the students to call out words
or phrases related to the topic, and he wrote many of their responses on
the blackboard including clusterfuck, fist fucking , and other taboo
To determine whether qualified immunity existed for the
college administrators, the court explored what the clearly established
rights were in this context. While the court reserved the ultimate
question of the constitutionality of the discipline, it had little difficulty
concluding that no decision had clearly established that dismissal for
Vega’s conduct violated a teacher’s First Amendment rights.
qualified immunity was available to the college administrators.
While these courts purport to use the same legal test for
determining the First Amendment academic freedom of teachers, they
reveal much inconsistency. An indirect use of fuck from a popular
magazine is okay, but an indirect use of fuck from a popular film is not.
Mailloux’s English lesson using fuck as an example is protected while
Vega’s English lesson using clusterfuck is not. Eleventh graders need
protection but twelfth graders don’t (but college students might). This
is hardly the consistency we would hope for in constitutional speech
Id. at 1132.
Id. at 1133-35.
Id. at 1139. The court also considered and rejected the standards used in both Mailloux and
Keefe. Id. at 1140-41.
Id. at 1144.
273 F.3d 460 (2d Cir. 2001).
Id. at 462-63.
Id. at 463.
Id. at 468-70.
If there is uncertainty in the application of the Kuhlmeier standard,
the courts that apply the Pickering analysis don’t fair much better as
they strip educators of constitutional protection for in-class speech. For
example, the Fifth Circuit used Pickering to reverse the district court’s
reinstatement of a university teaching assistant who spoke to an on-
campus student group and referred to the Board of Regents as a “stupid
bunch of motherfuckers” and said “how the system fucks over the
In so doing, the Fifth Circuit panel gave credence to the
testimony of other English professors that “it shows lack of judgment to
use four letter words to any group of people” and that one who used
such language was “ill fit for my profession.”
This is acquiescence to
the power of taboo language.
In a more recent example of Pickering application, English
professor John Bonnell openly and frequently used vulgar language in
the classroom including fuck , pussy, and cunt.
After being accused of
creating a hostile environment, Bonnell defended his use of language on
the grounds that none of the terms were directed to a particular student
and they were only used to make an academic point concerning
chauvinistic degrading attitudes toward women as sexual objects.
female student ultimately filed a sexual harassment complaint based on
his offensive comments; Bonnell responded by copying the complaint
and distributing a redacted version to all of his students.
This led to a
disciplinary suspension for routinely using vulgar and obscene
language, disruption of the educational process, and insubordination.
Bonnell sued and ultimately the district court granted his injunction.
The Sixth Circuit, however, reversed finding that the classroom
profanity was not germane to the subject matter taught and was
therefore unprotected speech.
“Plaintiff may have a constitutional
right to use words such as ‘pussy,’ ‘cunt,’ and ‘fuck,’ but he does not
See Duke v. N. Tex. St. Univ., 469 F.2d 829, 832, 836-38 (5th Cir. 1973). In the published
opinion, the court refrained from printing the words motherfucking and fucks and used the
asterisk euphemisms instead. The district court had held that the Constitution protected her use of
profanity because to prohibit particular words substantially increases the risk that ideas will also
be suppressed in the process. Id. at 838.
Id. at 839.
Not only does it reflect the power of taboo in the English professors’ comment and court’s
credence given it, but the misapplication of Pickering may also be influenced by taboo. At least
two critical questions seem to be answered the wrong way. First, the teacher was not in class but
rather was outside of class when the comments were made. Second, she was commenting on
topics not germane to her coursework, but of interest to the teacher, as a citizen, in commenting
upon matters of public concern.
See Bonnell v. Lorenzo, 241 F.3d 800, 802-03 (6th Cir. 2001).
Id. at 803.
Id. at 804-05.
Id. at 808.
Id. at 820-21.
CARDOZO LAW REVIEW
have a constitutional right to use them in a classroom setting where they
are not germane to the subject matter, and in contravention of College’s
The court left open the possibility that in-class
use of taboo language that was germane to the subject matter might be
What then does this survey of faculty fuck use show? First, the
federal appellate courts are divided on how to treat teacher use of taboo
words, with half of the circuits choosing the rule from Kuhlmeier and
the other half applying older Pickering. This decision in itself directly
charts the course of tolerance for the use of fuck because Pickering
analysis would not provide protection for in-class use. While the courts
using Kuhlmeier could extend First Amendment protection to teachers’
curricular decisions to use fuck , as Krizek illustrates, that doesn’t always
While others have tried to synthesize the judicial treatment of fuck
used by teachers in the classroom, the results are unsatisfactory. For
example, Professor Robert Richards, of the Pennsylvania Center for the
First Amendment and Penn State University, contends that the key is
whether the speech is germane to the subject matter. According to
Richards, “if I was teaching a media law class I could use the word
‘fuck’ when discussing the Cohen v. California case . . . [i]t would be
germane to the subject matter. However, if I used the term repeatedly in
math class, that would not be germane.”
“germaneness” doesn’t explain why relevant techniques used for
legitimate pedagogical purposes (and hence germane) as found in Vega
were not protected. Similarly, trying to make sense of the treatment of
faculty use of fuck can’t be explained by direct and indirect uses of the
word. Direct uses of fuck as in Mailloux are protected while indirect
uses of fuck as in Vega and Krizek are not—exactly the opposite of what
we would expect.
Word taboo, however, helps explain the vastly different treatment
afforded teachers’ in-class use of fuck . I see the influence of word
taboo on the parents who often initiate the complaints. Administrators
and school boards allow fear of the word fuck to serve as a litmus test
Id. The court relied on Hill v. Colorado, 530 U.S. 703, 716 (2000) (“[T]he protection
afforded to offensive messages does not always embrace offensive speech that is so intrusive that
the unwilling audience cannot avoid it.”) and Martin v. Parrish, 805 F.2d 583, 584-85 (5th Cir.
1995) (college professor’s captive audience does not allow denigration of students with profanity
such as bullshit, hell, damn, God damn, and sucks).
One glimmer of hope comes from Hardy v. Jefferson Community College, 260 F.3d 671
(6th Cir. 2001). In Hardy, a Sixth Circuit panel (including Judge Gilman) affirmed the denial of a
motion to dismiss a community college instructor’s claim that he was dismissed for using
“nigger” and “bitch” in the context of a class discussion on social deconstructivism.
David L. Hudson, Free Speech on Public Campuses: Sexual Harassment, Jan. 15, 2005,
(quoting Professor Richards).
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