The Tully Center for Free Speech

Free Speech Zone

Costly Cursing

By Roy Gutterman, September 5, 2012

A four-letter word got another high school student in trouble, and it was not even one of the “bad” words.  After a high school valedictorian in Oklahoma used the well-worn question “How the hell do I know?” in a speech, school officials withheld her diploma.

In her remarks at graduation, Kaitlin Nootbaar dropped the “offensive” question as a rhetorical flourish after discussing an answer to one of the most common questions leveled on any imminent graduate: “What do you want to do?”

This cavalier line may have flowed through her speech without a thought. Many of us use this expression without giving the language a second thought.  The school’s action here may speak louder than the so-called offensive language Ms. Nootbaar used.

It seems like a lot of people are suddenly interested in speech and controlling “bad language.” This summer Middleborough, Massachusetts, gained national attention for instituting an anti-cursing ordinance and the Supreme Court issued an opinion in the latest broadcast indecency case.

There have to be more important issues for government action.  Not everyone uses foul language and not everyone wants to hear curse words.  Furthermore, school districts do have a lot of latitude to control student speech, especially offensive speech.

In Bethel School Dist. No. 403 v. Fraser (1986), the Supreme Court noted that school administrators can censor and punish offensive speech, including student speeches.  That case involved a student government election speech laced with double-entendres and statements deemed “inappropriate for some students.”

Ms. Nootbaar’s speech occurred in a school setting, albeit a high school graduation ceremony, so it fell under the control of school authorities, who are empowered to censor speech or apply after-the-fact sanctions.

Because she completed her academic requirements for graduation, apparently spectacularly to be valedictorian, and she was on her way to college on a scholarship, the only possible punishment seems to be withholding her diploma. School administrators said she can have her diploma if she apologizes. Ms. Nootbaar and her father have said she will not apologize.  Meanwhile, the case has received widespread media attention.

Even though this case speaks to a larger issue of control of student speech, it raises questions about whether the word “hell” should even be considered “offensive” or “inappropriate” in the 21st century.  If this is the worst word to ever be uttered on school grounds, then things are pretty peachy out there.

Broadcasting may be a good barometer for gauging offensive language. “Hell” might not be part of everyone’s vocabulary, but plenty of broadcast television and radio shows incorporate this word into programs. While the Federal Communications Commission issues guidelines on indecent and profane language, the Supreme Court has also weighed in on this several times.

The landmark FCC v. Pacifica (1978) stood for the commission’s authority to regulate indecency standards for broadcasters.  More colloquially, the case is known as the “seven dirty words” case thanks to a monologue by the late comedian George Carlin, who discussed a range of words and their meanings – curse words that some may find offensive.

Although the “Carlin Seven” has never been considered an all-inclusive list of banned words, Ms. Nootbar’s word is not among the dirty seven.

Though the Supreme Court reaffirmed the Pacifica case this summer, the broadcast regulatory scheme really has no bearing on Ms. Nootbar’s case other than showing that perhaps her words were not even that offensive in the first place.  The school district’s zealousness to police and censor language used by a high school graduate may take an innocuous comment and turn it into a federal issue, this time a First Amendment issue.

Perhaps another Supreme Court case can put this entire dispute into perspective.  In Cohen v. California (1971), a case involving expression and speech and the use of a word even more offensive than the one Ms. Nootbar used, Justice John Marshall Harlan gave us a famous line:  “One man’s vulgarity is another’s lyric.”  This is an amazing explanation that language, like taste, art and beauty, is in the eye (or mouth) of the beholder.  And taste, for Justice Harlan, cannot and should not be judged by government officials, even school administrators.