Is it OK to use the f-word in political protest?

Marchers at a “traditional marriage” rally in Sydney’s Belmore Park on September 20, 2015. AAP/Richard Milnes

In September last year, a “traditional marriage” rally took place at Belmore Park, near Sydney’s Central Station. The attendees, led by NSW Christian Democratic Party MP Reverend Fred Nile, held up banners displaying the slogans “MUM + DAD = CHILDREN”, “What About the Rights of the Child?” and “Repent and be Baptised”.

In response, Catherine Rose, co-convenor of the activist group Community Action Against Homophobia (CAAH), led the following chant:

When I say same sex, you say marriage. Same sex. Marriage. Same sex. Marriage. When I say bigots, you say fuck off. Bigots. Fuck off. Bigots. Fuck off.

If asked to decide whose words were more offensive, which would you choose: the slogans or the chant?

On 20 September 2015, NSW police chose the latter, charging Rose with using offensive language in a public place. Also charged were Patrick Wright, co-convenor of CAAH and April Holcombe, LGBTI Officer for the National Union of Students. During the counter-protest, Wright and Holcombe had called politicians “fuckers” and exclaimed “Fuck Fred Nile”.

Last week, in a Sydney Local Court decision, Magistrate Bradd dismissed the three offensive language charges. Magistrate Bradd stated:

A person does not use offensive language merely by using the word “fuck”. It depends on … the context in which the word is used, phrases such as “you fucking beauty”, for “fucks sake”, “fucking hell”, are just a few of the ways where the word is used, and is unlikely to be offensive.

What’s the real damage?

When Wright declared “Fuck Fred Nile” he did so to counter Nile’s views against marriage equality. Nile believes homosexuality to be a “choice” which is both “immoral” and “unnatural”. He has questioned the bases on which homosexuality was removed from the APA’s Diagnostic and Statistic Manual of Mental Disorders (DSM-II). Using slippery slope “logic”, Nile has stated:

If homosexual marriages were allowed and legally recognised, then there will be a push to affirm (through marriage) child brides, incestuous partners, bigamous or polygamous partners.

Highlighting the damage wrought by such views, Holcombe said in the counter-protest:

People over there are contributing to an epidemic of LGBTI youth suicide, self-harm and mental illness … What’s the real damage? Me saying fuck them or … we need to stand against them and make sure us using bad language about these fuckers is nothing compared to the epidemic of suicides these people contribute to.

What is the law on swearing in public?

At law and in linguistics a word’s offensiveness depends on the context in which it is used. Offensive language crimes do not prohibit “swearing” per se (Tasmania being the exception). Rather, in Australian states and territories, the use of offensive, indecent or disorderly speech in public is punishable by fines ranging from $660 to $6,000 and can attract up to up to six months imprisonment.

Offensiveness is defined in the case of Worcester v Smith as “such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage” in the mind of the “reasonable person”. In reality, police and judges (not the reasonable person) adjudicate offensiveness. Police overwhelmingly target the swear words “fuck” and “cunt”, and in 2015 – despite the ubiquity of these words – charged 1,613 adults with using offensive language in NSW (with a conviction rate of 88 percent). Indigenous Australians made up one-third of those convicted in 2015 (despite comprising three percent of the NSW population).

Swearing and political protest

Those who drop the “f-bomb” in protest do so because this word has unique and essential functions in the English language: expletives can elicit shock, vent anger or frustration without resorting to physical violence and succinctly challenge ideas in a way that few words can.

These important functions of swear words were illustrated in the US Supreme Court case Cohen v California. On April 26, 1968, Paul Cohen wore a jacket to a Los Angeles courthouse bearing the phrase “Fuck the Draft”. He did so to protest military conscription in the Vietnam War. Cohen was arrested and sentenced to 30 days imprisonment for disrupting the peace by offensive conduct.

Cohen appealed his conviction to the US Supreme Court. The Court quashed his conviction on the basis that, consistent with the First and Fourteenth Amendments to the US Constitution, the State may not “make the simple public display … of this single four-letter expletive a criminal offense”.

The US Supreme Court reasoned:

To many, the immediate consequence of this freedom [of expression] may often appear to be only verbal tumult, discord, and even offensive utterance … That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength.

The Court suggested that a strong society is one that allows for, and even protects, dissident voices. Although swear words might be shocking or even distasteful to some, the real question is whether they deserve criminal punishment.

Like Cohen v California, the “Fuck Fred Nile” case highlights the absurdity of responding to “fleeting expletives” with criminal sanction. This is particularly so when contrasted to language which depicts homosexuality as abnormal, unnatural and sinful.