Is there a place for rough, profane or vulgar language in this blog?

While he thought the story was inspiring, a distinguished federal appellate judge from another Circuit thought my use of a vulgarity (“suck”) in the post about Shon Hopwood offended good taste.  I am glad the judge cared enough to write, and I sincerely thank him. Although I am not keen on receiving lectures on taste and decorum, the judge’s candid criticism about my use of rough, profane or vulgar language caused me to reflect seriously on his point.

I am of two minds. On the one hand, I understand the great strength of the judge’s point. Among other consequences, jarring language such as the word the judge complained about may unnecessarily diminish respect for other judges. Moreover, judges should model civilized writing if for no other reason than they expect civilized discourse from others. Still further, bad words are simply losing their utility in our coarsening society. On the other hand, I want to demystify the work of federal trial judges. Sometimes, rough language expresses my thoughts in a way that more refined language would mask. Indeed, from where I sit, much of what I see and hear is actually profane and vulgar no matter how I might wish to sanitize it.

So, what have I decided? I will continue to write in the style that suits me.  But I will redouble my efforts to avoid language that unnecessarily offends or distracts. That’s the best I can do. Actually, that’s all I am willing to do.

RGK

23 responses

  1. I can name several appellate judges who use wonderfully proper language but have never or only in a very blue moon ever voted to reverse a great of summary judgement in a civil rights or employment discrimination case and never found a incredibly lengthy sentence to be “unreasonable.” I, for one, could use a little less proper language and a little more justice and fairness.

    • Mark,

      You are such a good friend! I appreciate your support more than you will ever know. That said, I believe the judge was entirely sincere. Moreover, your comment raises a fascinating point. Appellate judges see things from above. We trial judges see things from below. The difference in perspective is profound and our choice of language sometimes mirrors (out of necessity) that difference.

      All the best.

      Rich

    • Marc,

      I am old enough that the idea of a tattoo creeps me out. The man I regarded as my grandfather had a tattoo from the war on his forearm. As a child, I found the idea of receiving a tattoo to be terrifying. Consequently, I just can’t wrap my mind about me and a tattoo.

      Second, my credibility, such as it is, would be hurt by the howls of laughter from those who love me. Trust me, my kids would make my life miserable.

      Third, and more seriously, whether my credibility would be harmed probably would turn on the viewing audience. Some folks would like it, some not, and others would be nonplussed.

      All the best.

      RGK

  2. Oh my word. There have been so many of your posts that I have wanted to comment on—in appreciative agreement, in earnest disagreement, in thanks for your support of my fellow FPDs—but each time I have refrained.

    And now this. I just–. I can’t–. Oy. This has me sputtering with frustration.

    Where language is used to be cruel, to denigrate, or to frustrate truth, surely it is the job of all thinking caring people to avoid it. But to suggest that a federal judge is somehow threatening the venerated status of black-robed men and women who sit in elevated chairs behind banks of marble and burled wood when he occasionally expresses the true emotional dimensions of his work as a judge is simply absurd. That vulgar (“of or relating to the common people”) language—and moreover expression of the shared humanity it calls to mind—has for so long been mostly absent from judicial interactions with the public may be far more of a problem than its occasional coarsening presence. Our clients—whether they are criminal defendants or civil litigants—are much more concerned with fairness than they are with whatever passes for good taste among people with whom they often appear to have very little in common.

    It is precisely because you do not censor yourself (or at least not completely) that this blog is so valuable and meaningful to those who read it. It is precisely because you do not censor yourself that even where I disagree with you I trust that you come honestly to the debate.

  3. interesting question. in a non-electronic setting (i.e., “real human interaction”) it is much easier to determine the appropriateness of certain language by simply assessing your audience. in this forum or context, however, it is difficult to know who, exactly, your audience is. while one solution would be to simply write in a manner incapable of offending anybody, such would be unsatisfying to us readers (and you as well, i suspect). i think people are far too easily offended these days and so long as your use of “bad” language is not gratuitous, i think it is perfectly appropriate and helps “keep it real” as the youngsters say (or at least used to say).

    • Noob,

      It is an interesting question. And, you are right. If I wanted to write in the manner I write opinions I would not be writing this blog. Thanks for taking the time to write. All the best.

      RGK

  4. kind of a tangent but one of the earliest transcriptions of Shakespeare’s Tempest has the long s (f) and this passage was adjusted. :).

    Where The Bee Sucks There Suck I

  5. Your honor, those of us who pride our selves on our books or soon to be books, don’t give a big rat’s ass about the language you use. You are getting through to us, making your points, and giving us valuable insights into the art and craft of judging. Keep it up and let those complaining read the collected sermons of Cotton Mather if they seek purity of prose. Jim Hewitt

    • Jim,

      Your incisive comment gives me great comfort. Thank you.

      All the best.

      RGK

      PS. Jim Hewitt is a former President of the Nebraska Bar Association, a former member of the ABA Standing Committee on the Federal Judiciary, a very distinguished Nebraska lawyer, and a PhD in legal history. He is also one of the most literate lawyers I have ever known. His daughter, Mary, was one of my best law clerks. Jim is also a dear friend. A skeptic might therefore be induced to question whether Hewitt is just a bit biased. In this one respect, I am happy to jettison my skepticism even if to do so is self serving. Again, Jim, thank you!

      RGK

  6. With all due respect to your appellate counterpart, perhaps you could respond by paraphrasing a higher court: “While the particular four-letter word being [debated] here is perhaps [less] distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Cohen v. California, 403 U.S. 15, 25 (1971).

    • SC,

      I had forgotten all about Cohen, but I shouldn’t have. In 1971, as a “summer associate” at a “Big Law” outfit back East, I was tasked with helping a partner who had taken on a similar war protester as a client. The kid used the identical vulgarity to the annoyance of the powers that were. Cohen blew up such prosecutions and there were many of them throughout the country. The decision was a very big deal back in the day, but it is almost quaint in retrospect.

      In any event, thanks for the reminder. All the best.

      RGK

  7. [W]hether my credibility would be harmed [by having a visible tattoo] probably would turn on the viewing audience. Some folks would like it, some not, and others would be nonplussed.

    So it is with cuss words.

    Moreover, a cuss word has use in emphasizing a point through its evident strong emphasis, and it has use in illustrating a point through its evident jarring nature. However, to achieve either of these, the cuss words cannot be sprinkled liberally, but must be used sparingly.

    And you do use them sparingly; you have no problem in this regard.

    In fact, from this layman’s perspective, reading the cussing of a sitting Federal judge was a bit jarring–which only made the point you were making the stronger and more memorable. And made the judge more accessible, since I’m pretty profane, myself. Of course, I’m not your primary audience.

    Re noob’s comment: …in a non-electronic setting (i.e., “real human interaction”) it is much easier to determine the appropriateness of certain language by simply assessing your audience.

    Indeed, in the ancient days before the Internet, most folks who communicated without being face to face still could count on the power and clarity of their writing (oddly, those olden times also coincided with the actual teaching of “writing”) to make their point or their satire clear. Today, it’s…virtually…impossible even to tell a joke without appending an idiotic smiley face to the jape.

    As to PC fascists [sic], screw them. And I’m not referring to your appellate judge correspondent.

    Eric Hines

    • Eric,

      Thanks Eric. I am particularly interested in your views because you are a well-informed person who is not a lawyer. All the best.

      RGK

  8. This issue brings to mind my favorite lines from two movies (made before the advent of gratuitous cussing and colorful language in film dialogue). As stated in many of the comments, there are certain places, times, and circumstances where the use of colorful language is acceptable. One such place or circumstance is being in the trenches and on the frontlines. Cue the movie “Patton.” One of the more famous exchanges occurs “out in the field” when the chaplain asks Patton if he reads the Bible, to which Patton responds “Every God-damned day.” Fitting! As one becomes removed from such circumstances, the rules of decorum seem to call for more “appropriate” language and conduct. Cue the movie “Dr. Strangelove.” When Buck Turgidson and the Russian Ambassador get into a verbal and physical altercation near the executive roundtable, the President shouts out: “Gentlemen, you can’t fight in here! This is the war room!” I think there is a (duly respectful) point in there about the varying roles in the federal judiciary and the use of colorful language in this blog.

    • And there’s the Spock line in a movie where our heroes were having to fit in during an earlier (time traveled-to) time in the US, and Spock had to learn human colorful language.

      Kirk How are you coming with [that time-critical task]?

      Spock Just a damn minute, Captain.

      No point to the line other than its comedy–which worked exactly because it was so out of character. And how often do you get to cuss out your boss without getting fired over it?

      Eric Hines

      • Eric,

        Or, “If I were human, I believe my response would be: ‘go to hell’. If I were human.”
        –Spock in The Final Frontier.

        All the best.

        RGK

    • MOJO,

      Wasn’t George C. Scott’s portrayal of Patton wonderful? I love the following bit of earthy advice as well. Patton: “Now I want you to remember that no bastard ever won a war by dying for his country. He won it by making the other poor dumb bastard die for his country.”

      Scott wasn’t bad as General Buck Turgidson in Dr. Strangelove either. Remember General Buck Turgidson imitating a low-flying B-52 “frying chickens in a barnyard?”

      Thanks for the reminder! All the best.

      RGK

  9. Judge,

    I can’t help but get the feeling that your colleague’s comment would have merited its own profane response had it come from someone you esteem less. This is probably someone you respect, and you seem to be bending over backwards to justify this comment as a salutary platitude on civility. Understandable, but I think you’re giving your colleague too much credit. I would submit, humbly, that your mistake was not in using allegedly profane language, but in leaving any room for doubt in your colleague’s mind that a reproving lecture on a point so pedantic would be received with good will.

    • Trebek,

      You give me too much credit. I only know that the judge who contacted me has a good reputation. I didn’t know the judge personally. That said, your suggested response crossed my mind, but here is the deal: I think the judge was sincere, and a sharp response would not have made anything better.

      Thanks for your comment. I truly appreciate it.

      All the best.

      RGK

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