During one of Comedian Lenny Bruce’s performances in 1966 he was arrested for saying words which were deemed public profanity. They included words like “ass, piss, shit, and balls” In 1972 George Carlin released an album entitled Class Clown which had a track based on Bruce’s use of the words called “Seven Words You Can Never Say on Television” and made fun of a law that prohibited their use on television.
In 1973 a New York radio station played Carlin’s recording of the seven dirty words. A listener complained to the FCC and they sanctioned the radio station resulting in litigation that reached the U.S. Supreme Court. In 1978 the Supreme Court issued its historic verdict in the George Carlin “seven dirty words” case. The decision dealt with the use of indecent and obscene language on television. In a 5-4 split among the Justices, Justice John Paul Stevens writing the majority decision gave the FCC the ability to impose penalties on broadcasters who presented obscene, indecent, or profane language outside of certain time periods or in certain cases. It also limited the First Amendment rights of broadcasters.
Like the Carlin “seven dirty words” there has been a steadily increasing number of courts around the country instituting bans on words they have decided are somehow prejudicial. This has happened in criminal cases as well as civil cases,
In criminal cases the forbidden words have included “rape” “victim” “crime scene” “homicide” and “drunk.” For example, in a 2007 rape prosecution, a Nebraska trial judge ordered that the words “rape, sexual assault, victim, assailant and sexual assault kit” could not be used on the grounds it was prejudicial to the defendant. A hung jury was the result of that trial. The federal judge in Trump associate Paul Manafort’s trial told prosecutors they could not to use the word “oligarchs” to describe wealthy Ukrainians who paid millions to the former Trump campaign chairman.
Plaintiff lawyers have experienced trial judges, in civil cases, who have banned words like “safety, danger and egregious.” In a civil case for damages to a child, the judge prohibited use of the child’s name, requiring the lawyers to use words like “the minor.” Other judges in civil cases excluded the phrase “needlessly endanger patient safety.” In a civil case where the police had actually arrested a doctor in a police raid at his office the judge prohibited referring to a “police raid” and required the phrase “visit by law enforcement officers.”
Forcing witnesses to phrase what they know by substituting other words in place of their own words may implicitly negate the truth. In fact, there are no truly neutral words. Yet, it has become more common for judges to identify their personal list of “dirty words” they won’t allow in their courtroom during a trial.
In September of 2018 Spokane attorney Marcus Sweetster published an article Safety Cannot be Banned from Courtrooms in the Washington State Association for Justice Trial News. He reported that in a civil damage trial the judge ruled that the phrase “safety rule” could not be used. He notes in the article that the ruling makes no legal sense:
“Safety rules are embedded throughout Washington law. Potential safety measures are proper for the jury to consider as standard of care evidence. The Washington Pattern Instructions instruct the jury that the “duty to exercise ordinary care” exists to protect others’ “safety. The jury must evaluate whether the defendant exercised reasonable care under the circumstances, including whether the defendant considered the foreseeability of harm, the gravity of their risks, the safer alternatives available, and the community or industry standards that are expected. The jury may “consider logic, common sense, justice, policy, and precedent, as applied to the facts of the case, when determining whether a defendant owes a duty in tort. We have long applied these factors when defining ‘duty,’ and they can be traced back for more than 100 years.”
“Safety rules provide key evidence of foreseeability. Foreseeability of injury or danger is a key element of tort liability. Fundamentally, there must be a scope of duty before there can be a breach. “Foreseeability is used to limit the scope of the duty owed because tortfeasors are responsible only for the foreseeable consequences of their acts: “It is for the jury to decide whether the general field of danger should have been anticipated.,, “It is the jury’s function to decide the foreseeable range of danger.
“Safety rules provide evidence that one can reasonably anticipate harm caused by particular conduct, the foreseeable scope of the public exposed to the risk of harm, and the foreseeable severity of injuries that can be reasonably expected. . In Wells v. City o/Vancouver, 77 Wash. 2d 800 (1970), Washington’s Supreme Court explained that plaintiffs have the burden of demonstrating defendants violated a common “rule” to prove breach of reasonable care,
“It is not improper to advocate safety rules as a standard to be expected of all people in the relevant community. The wide latitude given to counsel includes argument to the jury to return a verdict that promotes the public policies of the law. The concept of duty is a reflection of all those considerations of public policy which lead the law to conclude that a ‘plaintiffs interests are entitled to legal protection.”,One of the major purposes of tort law is to encourage people to act with reasonable care for the welfare of themselves and others … An underlying purpose of tort law is to provide for public safety through deterrence.,, The law of torts, as developed over the centuries, reflects certain basic social policies. These policies represent deep-rooted notions of fairness and justice in human relations … [and] evolved, in many ways, to embody the aspirations and ideals of a culture with respect to the relations of one man to another in the community.”
Certainly there are situations where it is proper to restrict the use of words or phrases to conform to rulings about excluded evidence or where the matter is irrelevant. In civil cases where evidence of insurance is excluded, a restriction on bringing up insurance may well be proper or where conviction of crime has been excluded to prohibit discussion of convictions. But, too often the ban is imposed because the judge has subjectively decided the use of a word or phrase is somehow unfair to a party. Too often this kind of micro managing trial advocacy creates more harm than the supposed good it is supposed to bring.