The common law long held that words could be punished if their utterance might cause a breach of the peace. This article thus examines a seemingly simple question: When did American law transform this long-standing rule as it pertained to vulgar, filthy, or “blue,” words and begin to consider the simple utterance of those words as criminal actions in and of themselves? To answer that question, we looked to stand-up comedy and discovered a tradition of regulating filthy words that reached back to the post-Civil War era. There, the regulation of words as obscene coincided with the emergence of sanitized entertainment spaces, epitomized by vaudeville and the increased presence of women and children in public spaces. On these stages “blue” words were illicit; resistance from performers such as Sophie Tucker and Russell Hunting would only confirm the prevalence of this legal regulation. These performers and their regulation invite us to observe a post-war legal transition that was not just about citizenship and individual rights and to recognize that filthy words also underpinned a new legal order. A century before George Carlin, Richard Pryor, and Lenny Bruce famously pushed the boundaries of comic expression, “blue” language stood at the center of efforts to separate ordinary people from their words; the legal protections for speech were made contingent on their capacity to protect, and even generate, the profits of owners, managers, and investors. This post-war transformation of filthy words from common law to statute reminds us that the right to speak has long been subject to an economic hierarchy in which the interests of the wealthy are paramount. As vaudeville reveals, in modern America access to this right has been strongest when words reinforced this hierarchy and weakest when they threatened it.Download the article from SSRN at the link.
June 1, 2023
Mercer and Black on Inspired Filth: Working Blue in Vaudeville America @UTKLaw @UMemLRev @UBSchoolofLaw
William Davenport Mercer, University of Tennessee, Knoxville, Department of History; College of Law, and Joel Black, University at Buffalo Law School, are publishing Inspired Filth: Working Blue in Vaudeville America in volume 53 of the University of Memphis Law Review. Here is the abstract.