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July 2012 - Hobgoblins of a Judicial Kind

by Justice William W. Bedsworth

All right, class, let’s review.

When last we met, we discussed Australian trademark law 1.

Specifically, we discussed the decision of the Australian government to allow a snack food company to market their nut products as “nuckin futs.” Some of you—who inexplicably read the entire column while sober—may remember I was disappointed by Australia’s conclusion the first part of this “obvious Spoonerism” had become such a “universal” part of Australian life that the phrase “nuckin futs” was no longer offensive2.

I was—and remain—concerned that Australia has unnecessarily conceded a coarsening of the level of daily discourse that just cannot turn out well. I’ve reluctantly concluded—“reluctantly” because I like wordplay as much as the next guy and generally reserve my shock and outrage for more than coarse language—the Aussies have made a mistake. I think they’ll regret letting that word get its foot in the daily dialogue door.

As I think we would if we made that mistake here in the United States. If it’s good enough for food wrappers, it will soon slide down the slippery slope into movie trailers and ESPN interviews. Eighth-graders will insist on using it in their papers on First Amendment freedoms. Eventually, I will have to find a new word to use when I’m really unhappy about something because that one won’t have the clout I’m looking for. “You kids get off my spanarkling grass!”

On the other hand, the British government has taken my side on this issue. They have stood up on their collective hind legs and refused to accept profane advertising.

It should come as no surprise to you—if you are familiar with judges—that this upsets me, too. I am unhappy with the Aussies for not being strict enough about trademarks and advertising phrases, and unhappy with the Brits for being too strict.

Typical judge; nothing ever pleases them.

Let’s explain how I can excoriate one commonwealth government for being crude louts and another for being priggish bluenoses on the same issue. How is it neither of their opposite rulings pleases me? Then we’ll move on to the MCLE portion of today’s discussion.

There is a furniture retailer in England called Sofa King. They’ve been operating for almost a decade in Northampton. Throughout this time, they have used an advertising slogan which has apparently escaped governmental attention. The slogan: “Sofa King, where our prices are always Sofa King low.”

For nine years, no one objected to this slogan. People took their trade to Sofa King, their ads ran in daily newspapers, and the company prospered.

Then someone in the British government spoke the slogan aloud.

Now let me warn you...if you are offended by coarse language...if you thought last month’s column was too racy3...if you’ve managed to write briefs all these years without developing an interest in the development of word usage4, then stop reading right now and do not, whatever you do, repeat the Sofa King slogan out loud. Especially don’t repeat it out loud five times rather fast in the company of friends5.

Because if you do that, you—or your friends—are liable to hear what it is that caused the British government, after nine years, to holler, “Whoa! You can’t say that6!”

Outraged, the Queen’s minions have descended on Sofa King like the armies of Saladin. Wielding red pens rather than scimitars, they have forced Sofa King from a battlefield scarlet with advertising gore and ordered bowdlerization7 of the Sofa King effective ads that have run for nine years8.

I think that’s wrong. I think they should have just ignored the ads—as everyone with governmental oversight responsibility had for almost 3,000 days. Yeah, a few folks with good ears might be offended, and a few 12-year-olds might snigger, but basically, no harm would be done. Non-problems, like vampires and yetis, can be handled with non-solutions.

And if that seems to you inconsistent with my “nuckin futs” position, you are ready for the MCLE portion of the column. To wit:

When I started my career as a young prosecutor back in the Pleistocene, I often sought advice from more experienced prosecutors about judges. It often came in the form of one-word descriptions.

One of the most common was “consistent.” This sounds positive, and was in fact meant to be. This was the descriptor applied to judges who usually ruled in favor of the prosecution. These were the “good judges.”

Then there were the “bad judges”—the ones who didn’t consistently rule in favor of the prosecution or, worse yet, tended to side with the defense. These were the judges who had seen a search they didn’t like or a defendant worth taking a chance on.

Then there was the third category: “erratic.” As you might imagine, I didn’t expect much from the judges described to me as “erratic.” That is a word commonly used in a pejorative sense, and that was how I understood it. Indeed, that is how it was meant.

But I learned after awhile that some of the best judges I appeared before were the ones described by my prosecutorial colleagues as erratic. They were the ones who couldn’t be counted on to “consistently” agree with the District Attorney’s Office. They were the ones who analyzed each case on its own facts, didn’t always accept my analysis of the case law as gospel, and sometimes ruled against me.

They were, of course, wrong on the occasions when they ruled against me. But I came to learn it wasn’t so much a matter of being “erratic” as it was of not accepting me...or the District Attorney’s Office...or the Attorney General...or the law firm whose name partners were veterans of the Battle of Hastings...as the be-all and end-all of legal analysis. It was a matter of doing the job they had been hired to do, regardless of the outcome. And the devil take the hindmost.

The oft-misquoted line of Emerson is, “A foolish consistency is the hobgoblin of small minds.” Those first two words are too often forgotten. Consistency is a good thing; foolish consistency—consistency for its own sake, and without regard to equity and fairness—is for smaller minds than we need on the bench.

The best judges come to each case with an open mind. They require convincing about which precedential box their case fits into. The best judges are hard to predict and are “consistent” only in the hard work they put into their cases.

Me . . . I’m just erratic.

Beds' Notes

  1. Remember this phrase: “Australian trademark law.” That’s the answer if someone whose approbation you value asks what you’re reading. If it’s someone you don’t care about, the answer is “Bedsworth.”
  2. Although they did require that the futs in question not be marketed to children—a prophylactic measure I regard as having as much likelihood of success as requiring a warning label on bottles of beer that says, “This product may make you laugh and kiss strangers even while your favorite sports team is getting thoroughly shellacked. Use with care.”
  3. This was a concern I had. But no one—not one single reader of any of the publications in which it appeared—objected to the subject matter of the column or my treatment of it. Which may indicate either that the Aussies were right or that my audience sets the entertainment bar so low it is indistinguishable from a speed bump. But lawyers are all about words, so I figured this was suitable for an audience of such adults. If I’ve misjudged your personal tolerance for such subject matter, I apologize.
  4. Kinda colored the argument there, didn’t I?
  5. I ran this by several colleagues at the Court of Appeal. You will be happy to hear none understood the objectionable nature of the phrase when they read it, and a couple were etymologically pure enough to have trouble seeing the problem even when it was read out loud to them. Which suggests to me that either the Aussies underestimated the gentility of Australian common speech or California Court of Appeal justices operate on a higher level than Australians.
  6. Or whatever it is the Brits put at the beginning of their Cease and Desist orders.
  7. Thomas Bowdler, eighteenth century rich guy who tried to improve upon Shakespeare by expurgating its “vulgar parts.”
  8. I have no idea who wrote that paragraph. The phrase “demonic possession” comes immediately to mind.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. He can be contacted at william.bedsworth@jud.ca.gov.

 
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