June 22, 2012

Prof. Stone says it's "depressing" that the Court's "fleeting expletives" opinion repeatedly used "f***" and "s***"...

... instead of "fuck" and "shit."
In 1971, when the Court held in Cohen v. California that a state could not constitutionally make it a crime to use the word fuck in public, it used the word fuck. In 1978, when the Court upheld the FCC's rule banning the use of "indecent" words over the airwaves, it quoted in full George Carlin's monologue, including the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those words, according to Carlin, were the "ones that will curve your spine [and] grow hair on your hands." When the Court of Appeals decided this very case (twice), it had no qualms about using the actual words that were at issue in the case. But Justice Kennedy had to use ***s to avoid saying fuck.

This is not what lawyers and judges do. Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal vaginas (unlike some legislators these days). 
Hey, why did Professor Stone go straight from gruesome wounds to vaginas? Because he's not being careful and sensitive and anticipating all manner of complaints. He's being Carlinesque and confrontational.
... Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.
Perhaps the Justices thought that to write out the words made them seem to have an unprofessional favoritism toward the folks who want to be free to (fleetingly) utter expletives.
When Melville Nimmer represented Paul Cohen in the Supreme Court in Cohen v. California, he knew he had to say the word fuck in the Supreme Court for the first time in its history. He also knew that Chief Justice Burger did not want this to happen. Sure enough, when Nimmer approached the lectern to make his argument, Burger leaned over the bench and instructed Nimmer, "Counsel, we are familiar with the facts of this case. You can dispense with them and move directly to your legal argument." To which Nimmer replied, "Of course, Your Honor. Suffice it to say that my client was convicted of disturbing the peace for wearing a jacket in public bearing the words 'Fuck the Draft.'" It was at that moment that he won his case, because lo and behold the walls of the Court did not crumble.
But you see the enthusiasm there. It's not just about willingness to plainly state ugly facts, as in a murder case. Lawyers and judges who must describe brutal murders in plain English are not doing a murder. But to say "Fuck the Draft" in court is to do what Paul Cohen himself did — say "Fuck the Draft" in court. (It wasn't just "in public." He wore his "Fuck the Draft" jacket in a municipal courthouse.)

That Melville Nimmer anecdote thrills us — some of us — because we identify with the expression in those words: Fuck the Draft. The Supreme Court never helped anybody who tried to litigate against the war in Vietnam, so there was emotional fire and resonance to the utterance right there of the words "Fuck the Draft." Professor Stone portrays it as pure, stolid, emotionless professionalism, but I have my doubts.

That said, when I teach Cohen v. California to a law school class, I say "Fuck the Draft," and I say it sincerely believing that not to say it is prissy and unprofessional. And if you said to me Althouse, admit it, you have some fun there with the opportunity to say "Fuck the Draft" with impunity, I would say: The Supreme Court writes "Fuck the Draft," which makes it the affirmative act to avoid saying "fuck," and the default should be passivity.

Which of course means that if I teach the new case — FCC v. Fox Television Stations — I won't be saying "Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple,"  which is really what was said on TV by a person whom the Supreme Court amusingly (or professionally) refers to as "a person named Nicole Richie." I'll say "Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple."

Actually, I don't know how to say that out loud. I don't know how to be passively professional about asterisks. Anthony Kennedy has left me in a quandry.

As usual.

49 comments:

Scott M said...

You could make a sign, of sorts, in the shape of a Y with the handle at the base. On the arms of the Y, which should be a little wider than your face, a set of quotation marks. Whenever you have to say fuck or shit in class, just hold that up so you're putting yourself in quotes.

t-man said...

"As usual" is sheer brilliance.

Scott M said...

Sort of on topic, there's a current show with a Nixon character. A few times that character has cussed, but instead of saying the dirty words, he says, "Oh, expletive deleted" in true Nixonian fashion.

Hysterical.

edutcher said...

Well, perhaps Mr Justice Kennedy is simply trying to spare a lady of your genteel upbringing and refinements the embarrassment of having to say such nasty words.

edutcher said...

Scott M said...

Sort of on topic, there's a current show with a Nixon character. A few times that character has cussed, but instead of saying the dirty words, he says, "Oh, expletive deleted" in true Nixonian fashion.

More like Congressional fashion, if you think about it.

Chip S. said...

"f***ing" is pronounced "effing".

And you, a blogger!

Balfegor said...

Prof. Stone writes:

Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them.

He's imbuing words with a mystic power and a reality that they don't really have. And the opinion has nothing to do with those supposed "realities." The words might as well be Fick and Scheiss -- the opinion doesn't turn on the content of the words at all, at least as I skim it (too lazy to read whole thing). The summary says it's all about void for vagueness and a failure to give fair notice that those words might be, ah, actionable.

Lyssa said...

The county I previously practiced in, Hamilton County, TN, had very strict rules against swearing in the courtroom. Absolutely not, no matter what. If a witness to an assault heard the defendant say "I'm going to fucking kill you!", that witness must testify that he heard "I'm going to f-ing kill you." People get thrown in jail for failing to do this.

It's facinating. I wonder if that rule was around before Cohen.

rhhardin said...

lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable.

The words don't make anybody uncomfortable, but the rules for context.

The rule in general is that you don't have the hearer's permission to be familiar, which you need.

JimB said...

I know I am an old fuddy-duddy octogenarian, but I must say that I prefer the old style polite speech. We have a coarseness in society that is a result of the lack of consideration for the feelings of others, and the consequences of the "Filthy Speech Movement" (remember that?) go far beyond the freedom to speak anything you want anywhere you happen to be.

It is IMO a symptom of the selfishness recognized years ago in the incoming freshmen classes at Harvard.

Balfegor said...

Actually, rather than "content" of the words, I should have said something like the "phonemes" or "orthography" of the words themselves -- since, after all, the content of the words is perfectly well known to any adult. Although of course, our mind fills in the sounds and letters of the underlying word when we see the censored form. Mine does, at least.

Scott M said...

The rule in general is that you don't have the hearer's permission to be familiar, which you need.

That's an interesting way of phrasing it.

Lyssa said...

I was in court in Sevier County a few months back, and there was a hearing going on involving a woman who, in a fit of not her most mature moment, I'm sure, had written some nasty things in the "memo" section of a check that would go to another person involved in some sort of domestic dispute. That check was later submitted as evidence, not by her and for unrelated reasons, to the court.

This woman was put in jail for several days for contempt for bringing this language into the court. Even though at the time, she had no reason to believe that the checks would ever see the courtroom, and they were only written. It was unreal.

We Tennesseeans take cursing in the court VERY seriously.

Bender said...

This is not what lawyers and judges do. Lawyers and judges deal with the real world.

No they don't. Courts are not the real world. Courts are a place of decorum. They are a place of artificial respect and etiquitte, starting with saying "your honor" to some guy you might be (1) the biggest prick in the world, rather than saying, "hey asshat," or (2) your best friend, rather than saying, "good morning Tony." You might be best pals with opposing counsel, but first names are for outside the courtroom, when you are in the court, it is "Counsel" or "Ms. This."

And when you speak otherwise, you do not act as if you are in some snivieling juvenile in a bar, you speak as if you were speaking to your grandmother, which means using some delicacy in language. If the record absolutely demands that you say fuck and shit, you do, but otherwise, f*** and s*** are the proper and professional way.

bagoh20 said...

That sure is a lot of words just to say that when it comes to fuck, she prefers to be passive. You have that luxury.

Richard Dolan said...

"Anthony Kennedy has left me in a quandry."

Heh (or is that copyrighted elswhere?).

WV: 25 nyTitt. So very true.

Tim said...

"Hey, why did Professor Stone go straight from gruesome wounds to vaginas? Because he's not being careful and sensitive and anticipating all manner of complaints. He's being Carlinesque and confrontational."

No, not really Carlinesque and confrontational.

If he really believed his complaint, he'd have said: "They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal cunts/pussies(unlike some legislators these days)."

But he pussied out, and did EXACTLY what he complains of the Court doing.

Why is that?

Scott M said...

Why is that?

One of the things about successful, widely published authors that fascinates me is how they perceive their written material to be viewed by those closest to them.

For instance, in fiction, do you go into graphic, just-short-of-porn details in a sex scene, knowing your mom, your dad, probably even your grandmother, might read it?

I imagine that could be the reason why he chose to do what he complained about here.

fleetusa said...

Anthony Kennedy has left me in a quandry

I pray he doesn't leave us in a quandry come Monday.

Bender said...

Courts are theater. Nothing about them are about the "real world."

Even trials are not about the real world, they are NOT about a search for truth, they are NOT about facts. Trials are about ADMISSIBLE EVIDENCE. A lot of facts and truths are purposely excluded from trials because of the rules of evidence. But advocates make their arguments, courts make their rulings, and juries make their verdicts based solely on the evidence that was admitted, not on what the truth is out there in the real world.

It is a hard thing for people to accept, but that is the system we have -- a system of theater and even fictions masquerading as truth. More than once an actually innocent person has had a conviction upheld by an appellate court on purely procedural grounds -- the rules of the theater are more important than truth and reality.

Richard Dolan said...

Bender -- with comments like that, you're approaching escape velocity. No telling where you'll end up.

phx said...
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Beldar said...

On this occasion I'm going to defend Mr. Justice Kennedy.

This is a matter purely of style, and of subjective personal preferences and tastes. There's no conceivable argument that the use of asterisks confuses anyone or muddies the law in any way. No one is being misled.

It's common and proper to refer to this written work as an opinion "of the Court" -- but it's a signed opinion, part of Justice Kennedy's own (weird and inconsistent) body of judicial writing. This is the kind of decision that belongs to him as a writer.

I'm not offended by those who choose otherwise, but on my own blog, for example, I choose to maintain a generally PG-13 tone. It's not because I oppose profanity; I'm the son of a sailor and was raised on the west Texas prairies, so cussin' is one of the things I never had to envy city boys for doing better or having more of. But I deliberate hold myself to a different, and admittedly more prissy, standard when I'm blogging. I have other standards, other filters, I employ in other contexts -- I may write very formally in court briefs, but very informally (sometimes with profanity) in communications with co-counsel or clients.

I suspect Justice Kennedy's choice is also mostly a matter of satisfying his own tastes, rather than trying to avoid offending others. I'm inclined to respectfully defer to his preferences in this context.

bagoh20 said...

Agreed, Bender just stated the primary problem with law as we laymen see it. It is an elaborate fantasy of the fashion of the catholic church. I'm rarely critical of religion, because I'm an idiot on the subject, but the Vatican always seemed to be in many ways the antithesis of Jesus Christ to me.

The law is often like that, where its tradition tramples its mission.

Rick said...

"Fuck you, XXX," was the statement my corporate client's officer said to XXX, and it was one of very able plaintiff's counsel's major themes when suing my client. Plaintiff's counsel repeated that, shouted that, many times at the jury during the trial. I never mentioned it, and my client never mentioned it other than to apologize for his choice of words.
It backfired on plaintiff's counsel.

MaggotAtBroad&Wall said...

Let's apply Prof. Stone's reasoning to the word nigger. It annoys me to no end that people pretend the word nigger can never be uttered under any circumstance regardless of the context. I don't understand why people think they have to clumsily substitute "the N-word" for the word nigger when the word is not being used in a prejudicial, derogatory, racist, bigoted or whatever context.

I assume Prof. Stone is fine with putting an end to the stupid self censorship when it is obvious to everybody listening to the speaker exactly what word is being substituted for when the speaker says "the N-word" instead. Just say it if that's what you mean. I'm pretty sure neither the speaker's tongue nor the listener's ears will fall off after the word is uttered.

Regardless of its historical context, it's ridiculous to think the black community is too sensitive to hear the word when it is used in a completely inoffensive, non-derogatory manner.

traditionalguy said...

There is a kowtowing to the Bad Words rules left over in adults from their Church/mother's training as children.

IObserving thos rules is like tipping your hat to the church ladies of both sexes. No harm in it, but childish.

But when the case itself is about the Bad Words then to keep hiding behind silly spelling tricks seems double childish. We need men and women willing to risk being grownups in public.

Geo Patton had no fear of Bad Words Rules.

Using sexual derived slang seems 80% OK today. All adults use sexual words; and the slang dictionaries are all about the latest 10,000 new words of sexual slang.

But the King of Bad Words remains SHIT in any form. Maybe the toilet training rules remain too shameful to allow that vulgarity to pass unpunished. Don't try it, it is not worth it.

The word Cursing has a defined meaning. And it does not mean uttering a mere vulgarity. It means a spiritual judgement upon another such as "go to hell" or "God Damn you."

God bless you all!

X said...

Hey, why did Professor Stone go straight from gruesome wounds to vaginas?


yes, it is a most unfortunate choice of words.

phx said...
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traditionalguy said...

The word police like to make us say agricultural implement in place of saying shovel.

That fine tuning actually makes us less safe. We need to know the bad things being reported in all their ugliness.

If Sandusky had been reported to be to be butt fucking 10 year olds, that would have gotten attention rather than saying that he may have been was inappropriately touching boys.

Damon said...

Bringing the post full circle with the last line was brillient - sheer genius. Didn't see it comming, yet it flowed naturally, and it completely belonged there.

This post in general should get honorable mention as one of the best constructed posts.

Craig said...

Hey, why did Professor Stone go straight from gruesome wounds to vaginas?

The precedent is Chaucer "bihold my blody wondes depe and wyde" depending, of course, on how one interprets Chauntecleer's troublesome dream.

Chip Ahoy said...

Okay, here's how you say s***

I will answer how a speech enabled person communicates the word shit as if it were written s*** for the sake of legal discourse. I would have a different answer for different situations because there are really good ways to do this.

Vocalize 'sh' instead of 's' and that gives a real good start. It's cheating because in the original the h is disguised as a *, but everything is fungible in language and I'm telling you how to do things.

Then for the ** we switch to sign language, which in the original is *** but that's irrelevant because nobody is really counting those stars. It is the actual ASL word for 'few' and it looks like you are spraying dots laterally with your fingertips or dealing cards with one hand. Here's what it is like since I cannot insert a video right here, it is like a geisha snapping open one of those japanese paper folding fans with bamboo spines, pop, and there's a piece of sushi as if on a plate. That is what the 'few' movement is like that can substitute for *** when accompanied with a facial expression that leans to the hand movement and overtly clownishly indicates 'now I have to switch to this because of all the sweary words taboos so here's my hand,' + spread.

You said you don't know how to say s*** out loud and now you do. So now we can knock it off with the excuses okay? and quit tossing aspersions on Anthony Kennedy about leaving being left in another quandry which happens to underlined in red so I'm changing it to quandary.

William said...

I would say that this is the difference between the n-word and fuck. When you say fuck, especially in the context of "fuck the draft", you are saying that the white male patriarchy and all their stupid fucking rules should go get fucked. However, when one utters the magic words, "fucking n...rs", one is not only expressing the biases of the white male patriarchy but also to some extent propagating them. Just saying such words conjures up demons.....I don't know if I agree with the argument that I have just made, but I think that's the implicit reasoning why liberals put the n-word outside of 1st amendment rights......In keeping with this ruling, can prime time television now show tits. I think tit baring be covered by the 1st amendment. Does such viewing subvert or augment white patriarchal values? I observe that there is far more ball kicking than tit baring on television.

Cato Renasci said...

I studied copyright under Mel Nimmer over 30 years ago. He was a man with a wonderful sense of humor that leavened his incredible erudition. It is inconceivable that he did not have twinkle in his eye when he made that statement about his client's conviction.

karrde said...

@Balfegor


He's imbuing words with a mystic power and a reality that they don't really have. And the opinion has nothing to do with those supposed "realities." The words might as well be Fick and Scheiss -- the opinion doesn't turn on the content of the words at all, at least as I skim it (too lazy to read whole thing). The summary says it's all about void for vagueness and a failure to give fair notice that those words might be, ah, actionable.
........
Actually, rather than "content" of the words, I should have said something like the "phonemes" or "orthography" of the words themselves -- since, after all, the content of the words is perfectly well known to any adult. Although of course, our mind fills in the sounds and letters of the underlying word when we see the censored form. Mine does, at least.


Well, I have toyed with the idea of muttering "copulating piece of excrement" at a mis-behaving machine.

But multi-syllable words derived from Latin don't have the same punch as single-syllable words sourced from Old English.

Balfegor said...

I will answer how a speech enabled person communicates the word shit as if it were written s*** for the sake of legal discourse. I would have a different answer for different situations because there are really good ways to do this.

My preferred way of censoring cuss words in quotations, where called for, is just to drop them out and replace them with a tongue click. This really only comes up when I (for whatever reason) have the desire to quote Larkin's "This be the Verse" in polite company.

They < click > you up, your mum and dad,
etc.

rcocean said...

Its amazing how people - usually liberals - believe legitimizing profanity is a worthwhile endeavor.

I guess its part their war on the Religious right.

jimspice said...

"I don't know how to say [s***] out loud"

I would suggest "ess asterisk asterisk asterisk" is WAY too long. I would shorten it to "ess ass ass ass."

Balfegor said...

Re: William:

I would say that this is the difference between the n-word and fuck. When you say fuck, especially in the context of "fuck the draft", you are saying that the white male patriarchy and all their stupid fucking rules should go get fucked. However, when one utters the magic words, "fucking n...rs", one is not only expressing the biases of the white male patriarchy but also to some extent propagating them.

Interesting thought. My view is slightly different -- that f*** and s*** are words which relate to subjects which, in a more refined age, were inappropriate for discussion in polite company. Just as academics used to write the naughtier bits of their works in Greek, people still used latinate circumlocutions ("copulate" "defecation" etc.) but in terms of the social function of the words, those weren't direct signifiers of the underlying acts, but indirect. At least, more indirect. They were understood as polite euphemisms. So there's a vestigial sense today in which their "taboo" status (to the limited extent it survives) marks off acceptable and unacceptable subjects of conversation.

The taboo on n***** is a pure taboo. The underlying meaning ("black person") isn't something people are expected to avoid discussing at all. It's just taboo, like the old taboo on using the characters of an Emperor's name in other words.

t-man said...

I have a "clean" version of Lily Allen's song The Fear from iTunes, in which the word f*** is replaced by a high-pitched ding.

When teaching this case, you could put a bellhop bell on the lectern and hit it while silently mouthing the profanity.

Another idea, teach the class from another location, with a seven-second delay, and have one student assigned to bleep out the profanity (or "accidental," brief nudity).

David said...

First, Stone is a blowhard and poseur, and has been (to my personal knowledge) for at least 25 years.

Second, he's right about this.

Third, I went back and checked, and he really did write that lawyers and judges "deal vaginas", which is one of the great slips of all time.

David said...
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JackOfClubs said...

You know, if you type all seven of George Carlins words without spaces, it is exactly 42 characters.

Saint Croix said...

Anthony Kennedy has left me in a quandry.

You and me, sister.

Kennedy is too prim and proper to say "fuck," but infanticide, he can handle. The whole fucking reason fuck is a fucking bad word is because it fucking leads to fucking infanticide, you fuck!

I can't even follow his fucking logic. "You have a constitutional right to say words that I will not say, because if I start saying the words, people might start fucking, and if they start fucking without love in their hearts, there will be unwanted babies, which will be aborted, which is a constitutional right, one that allows you to define your own concept of existence, or, as we Ivy League fuckwits like to say, exis*****, because I don't know and I'm not saying anything, you choose."

Kennedy's capacity to kill small babies flows directly from his inability to speak honestly and forthrightly about fucking.

Repression, denial, repression, denial.

There are quite a number of Republicans who are masters of the whitewash. Particularly when the Court's authority is at stake.

Anthony Kennedy, I remind you of the baby who was brutally murdered in Carhart. You did that. That is your vote. There is no fucking hiding behind asterisks, corridors of power, or your black fucking robes. There is no hiding behind fucking Latin or your fucking Ivy League degree. You are not going to be able to spin that dead baby with Down's syndrome into some happy little fairy tale where we all get to choose and the universe smiles at us and we fart rainbows. Fuck you and fuck the baby-killing you have done and continue to do. And I know you can't be fired, but maybe you ought to worry about H, E, double hockey sticks.

David said...

Great advice until you call some woman by the C word.

rhhardin said...

Hey, why did Professor Stone go straight from gruesome wounds to vaginas?

Grue is a crane in French; also, probably from the shoes, slang for prostitute.

William said...

I'd like to add these further valuable insights about dirty words. It seems to me that the Latinate and Greek words are, if not dirtier, far ickier than the Anglo Saxon ones. Shit is such a hackneyed expression that it has become distanced from it primal meaning. Faeces, excrement, yellow diarrhea, even poo are far more pungent words than shit. So far as fuck goes, not only has the word lost its meaning, but the act itself seems relatively innocent. In a world of riding crops, bukkake, and fungal vibrators, it seems that fucking is a relatively decorous activity.....Cunt is a dirtier word than prick. You can get into more trouble calling a woman a dumb cunt than calling a man a stupic prick. This fits with my earlier theory that it's all about subverting the patriarchy, those stupid pricks who make life unbearable

Saint Croix said...

Anthony Kennedy will not say “shit.” Let’s think about that for a minute. Why doesn’t he want to say “shit”? Answer: shits are bad. Shits are dirty. Shits spread disease and death. I think God made shits so nasty so none of us would eat them. God does not have a lot of faith in the old human intelligence. Also God wants to humble us and remind us, as spiritual as we might be, we’re also animals. Who shit! Every day, if we’re lucky. Including you, Anthony Kennedy.

Indeed, one might argue that atheists are more comfortable with words like “fuck” and “shit” because they deny spirituality. According to the atheist, we’re all animals and that’s all we are. Religious people like Anthony Kennedy (or myself) thus may feel superior to the atheist, who, after all, is really just an animal with a higher I.Q. A pig, maybe, or a monkey. But I would remind Anthony Kennedy that we Christians are animals as much as spiritual creatures. Certainly we like to eat, and shit, and fuck. Also I have found there’s a certain amount of fun in throwing shit on your enemies. I do not claim that this makes me seem smart like the Ivy Leaguers. More like a monkey at the zoo. Nonetheless, fun is fun.

It’s also interesting that mental illness can revolve around the shit. For instance, obsession and repression. Repression is like constipation. “I better not shit. It’s dirty.” I would describe Anthony Kennedy as a constipated Republican. He does not want to shit on his beloved Supreme Court. Wants to keep it clean and nice. Asterisks. So he is not happy about the shit word in this opinion, or the free-floating fetal head discussion in another notorious opinion.

I believe I get a certain animal glee in talking about repulsive things. Oh no! Justice Breyer has ripped that baby’s head off and lost it in his office. Maybe it rolled under your desk, Breyer. Go look for the baby head! Maybe you can stick your fingers in the cavity where you ripped out the eyeball.

Or there’s obsession, which is also shit-related. “There’s a mess, clean it up. There’s a mess, clean it up. There’s a mess, clean it up.” That’s the kind of Republican I am. Far different from the constipated Republican known as Anthony Kennedy, who denies the shit and says there is no possibility of it. “No shits today! Not in my opinion.” So of course I am in furious opposition to Anthony Kennedy’s constipated denial. All I smell is that damn stench emitting from the corridors of power. That foul odor! And I know there’s something shitty going on in there. Clean it up! Clean it up! Get that shit out of there, before you spread disease, decay and death, you constipated fuckwit!

Don’t confuse me with some liberal who likes the shit and thinks there should be more of it. No, no, no. I dislike shits as much as Anthony Kennedy. Might have to wash my hands after this damn blog comment. Although I do enjoy, in a certain gleeful animal way, the vulgarity we sometimes run across on Althouse.

I realize, of course, that going on and on about those damn infanticides can be kind of boring to non-obsessive people. I mean, we all know shits are evil. Infanticides are like shits. Nobody likes them, and we don’t like to talk about them. “Quit talking about the damn infanticides, you obsessive shitty person!” I know! Obsessives are annoying! Also we clean up the fucking world. And we have the most awesome sex on the planet. You better believe it, sister.