FUCT. “I’m f****d.” How Roman Law Affects Our Laws

This week, the “F” word made headlines twice. The Supreme Court is hearing an important First Amendment case. 

The man who designed and markets a clothing line called FUCT applied for trademark approval from the U.S. government. He wanted to protect his brand. Federal law prohibits trademark protection to words, phrases, and images that are “immoral,” “shocking,” “offensive” and “scandalous.”

If you think this case is easy— that FUCT should be trademarked— consider whether “Kill the Jews” can also be trademarked. (Yes, this speech is protected by the First Amendment, but can the U.S. government be compelled to issue trademark protection to it? Under current law, the answer is no.)

“Fuck” is not on trial here. Hate speech is. Just imagine if the “fine people” (using the president’s morally repugnant term) who organized the Charlottesville hate weekend apply for trademark protection of their inciting language.

This takes me to a conversation in our employment law class about the common law—a body of judge made rulings dating back to the 1400s. I recently found a much earlier date for the common law that affects our daily lives—535 A.D. Justinian, a Roman emperor, formed an academy of Roman legal scholars. Their job was to summarize the vast array of Roman court rulings that stretched over centuries and distant lands. You can find that work translated here (it is fairly short: http://thelatinlibrary.com/law/institutes.html).

Rome believed that words can cause injury. We have carried the law forward from 535 A.D. to 2019. It’s called defamation, and libel. We have a variant of the law below. It is called hate speech, though efforts to regulate speech are extremely fraught. Basically, the law only prohibits hate speech when it is connected to a threat to commit harm.

Here is what Rome’s common law said:

IV. Injuria.

Injuria, in its general sense, signifies every action contrary to law; in a special sense, it means, sometimes, the same as contumelia ("outrage"), which is derived from contemnere, the Greek ubris; sometimes the same as culpa ("fault"), in Greek adikama as in the lex Aquilia, which speaks of damage done injuria; sometimes it has the sense of iniquity, injustice, or in Greek adikia; for a person against whom the praetor or judge pronounces an unjust sentence is said to have received an injuria.

1.     An injuria is committed not only by striking with the fists, or striking with clubs or the lash, but also by shouting until a crowd gathers around any one; by taking possession of anyone's goods pretending that he is a debtor to the inflictor of the injury who knows he has no claim on him; by writing, composing, or publishing a libel or defamatory verses against anyone, or by maliciously contriving that another does any of these things; by following after an honest woman, or a young boy or girl; by attempting the chastity of any one; and in short, by numberless other acts.

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The text in red seems to refer to incitements related to hate speech—or more generally, speech that enrages a mob to act violently. And that is what we saw at Charlottesville.

Here’s hoping that the Supreme Court doesn’t FUCT the law to the point of ignoring what Rome understood: Some speech can kill.