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Entries from August 2016

Posted on Aug 10 on 2016

In 1972, George Carlin performed a monologue about the “Seven Words You Can Never Say on Television”.   Those words were considered offensive language, and the monologue itself gave rise to a lawsuit that made its way to the United Stated Supreme Court after a complaint was lodged by a member of a conservative organization known as “Morality in Media”.  The complaint was that the radio broadcast, heard by a 15 year old boy who was driving with his father, was inappropriate for the time of day.  The Supreme Court was ultimately called upon to rule as to whether an order issued by the Federal Communications Commission against the broadcaster was a violation of the First or Fifth Amendments to the United States Constitution.  The Supreme Court decided that it was not.  And at one point, George Carlin himself was arrested for disturbing the peace when he performed the monologue at a festival in Wisconsin.  Apparently George isn’t the only one to suffer consequences from the use of such language.

The California Family Code provides that if a court makes a finding that a party has “perpetrated domestic violence” against the other party seeking custody of a child, there is a rebuttable presumption that awarding joint or sole legal or physical custody is detrimental to the best interests of the child.  While most of us think of “domestic violence” as involving physical contact or abuse, the Family Code provides a significantly broader definition.  That definition includes engaging in behavior involving harassing conduct, or disturbing the peace of another.

Which is exactly how the “Seven Dirty Words” can lead to a restriction on someone’s custodial rights.  While few would argue that the use of colloquial English in the present era is significantly less formal than it may have been in the early 1970s, the words themselves continue to have significant power in some contexts.  In this day of electronic communications it seems that emails and text messages are showing up in family court proceedings with unrelenting abandon.  While in the past it would require the testimony of witnesses to create a record in court as to what one party said to the other, that is no longer the case. And it appears that in many a custody dispute, these electronic communications are saved by one of the parties and placed into the record with a claim that the communications, frequently containing some composition of the “Seven Dirty Words”, were disturbing of that party’s peace.   Whether the language actually did have that effect, whether the recipient of the language used the same words in conversing with the sender or with others, seems in this day and age to be of little concern in our politically-correct family court environment.  The use of the words themselves, particularly in the context of being descriptive of the parent to whom they are sent, can and do give rise to not only the issuance of restraining orders, but also to restrictions placed on the custodial rights of the sender.  And, at least one California appellate court has ruled that the restrictions put in place by such statutes are within the scope of a compelling state interest and not a violation of one’s constitutional rights to free speech.

In a 2004 NPR Interview with Terry Gross, George Carlin himself said that these “Seven Dirty Words” by themselves have no power, and that we give them power “by refusing to be free and easy with them”.  To quote George, “It’s the thrust of the sentence that makes them either good or bad.”  This also seems to hold true in the context of a custody dispute. But when the words are reproduced in a court session, they suddenly seem to have even more power.  It should not be automatic that the use of this language in the context of communications with a parent gives rise to an almost automatic restriction on that parent’s rights to interact with her or his own children.  This is by no means a statement intended to condone domestic violence in any form.  But it is to say that we should call into question whether the use of such language justifiably results in curtailment of some parent-child relationships, or whether courts are giving the words themselves too much power.