Watch Your F***ing Mouth

In Other by Richard Bianco

I swear, a lot. I mean really, a lot. If you’ve ever had a conversation with me that has lasted longer than three minutes, chances are I said ‘fuck,’ probably more than once. I swear in casual conversation, in routine business dealings, and in ending arguments before repeatedly slamming the phone down in the cradle hard enough to obliterate the handset and send plastic phone shrapnel flying all over my office.

It’s unprofessional, unbecoming, rude, crass – all bad things. I get that. I’ve tried to stop. I’ve made New Year’s resolutions, enlisted the help of my family, tried to use non-profane substitutes (like saying “forgetten” instead of fuckin’), and even had a co-worker institute a ‘swear jar’ at the office.

All efforts yielded no results, except the swear jar. That tactic quickly devolved into putting $20 in the jar at the beginning of the week and telling my co-worker to fuck himself on the way to my desk. Not the desired result, but a result nonetheless. My gutter-mouth remains a self-improvement work in progress, but this is not about me, it’s about the potential legal impact of swearing like a sailor in your disagreements with others.

In the hundreds of contractual disputes I’ve come across over the years, I never had a single one that resulted in a claim of “stalking.” Truthfully, I never imagined that such a thing was even possible in the context of performance on a contract.

Turns out, I was wrong. Stalking? I know, absurd.

A close friend of mine has been trapped in such a ridiculous and incredibly expensive lawsuit for the last couple of years. The allegations stem from three (3) email/text incidents over the course of a 14 month period in an ill-fated construction contract, which was, by all accounts, botched by the contractor.

The communications, far from a bastion of professionalism, featured language such as “fuck,” “dickhead,” and “pussy.” The contractor, for his part, threw in “fuck you” and “bullshit.”

Following the most recent string of three or four text messages, the construction contractor decided he was horrified by the foul language and filed for a temporary restraining order.

Although the Court correctly denied the restraining order, the contractor, undaunted, has pressed on with his litigation for the last 18 months.

Why?

Great question.

The contractor’s case turns on some legal minutia included in DC’s domestic violence law. (Yes, domestic violence). Without getting too technical, the DC Intrafamily Offenses Act, allows the Court to issue a stay away order, (among other things) in the face of certain violence between two parties with some preexisting relationship. (i.e. blood, romantic, cohabitation etc. as the name, Intrafamily suggests.)

However, about ten (10) years ago the law was expanded it to include “stalking” of unrelated parties.

Stalking is broadly defined as at least two incidents in which the perpetrator intended to or would reasonably expect the victim to fear for his safety, feel substantially alarmed, disturbed, frightened or emotionally distressed.

The problem with this statutory scheme is that with some imagination, a person could classify nearly any series of arguments as “stalking.” This is significant because, in the District, there is a strong presumption for “adjudication on the merits.” What that means is that nearly everyone gets their day-in-court, even people whose only goal is to waste time and money.

I am not suggesting that private citizens should be prohibited from getting restraining orders against unrelated people who may intend to do them physical or emotional harm. Merely, that domestic violence laws should be applied to meet their intended purpose, and not used as an outlet for frustrated business parties with an ax to grind. Allowing parties with a business dispute to use the domestic violence laws to harass their counterparts undermines the purpose of the Intrafamily Offenses Act. Moreover, it diminishes the plight of the vulnerable people who are truly in need of protection.

Notwithstanding my feelings on the subject, a legislative solution is not likely forthcoming. I don’t have any special insight into the Council’s legislative agenda, but, as recently as October 2017 one of the DC Council Members used the law to get an Order of Protection against a reporter who was continuously pestering him. (See White v. Muller, 145 DWash.L.Rptr.3527 (D.C.Super.Ct.October 6, 2017)).

To be fair to the Councilman, it was not so much a “reporter” as a “freelance blogger.” Additionally, his pestering consisted of 47 text messages, at all hours of the night, accusing that the Councilmember, among other things, isn’t a “street dude,” is a “fraud” and “small-time.” Based on that, the Cout found that the contacts did not relate to issues of “public concern” and were not the constitutionally protected speech that normally extends to news reporters.

Against this public and legislative backdrop, profanity can be more than just a dirty habit. Used in the wrong context, it could result in legal allegations of “stalking.” Bear in mind, that no matter how ludicrous the claim, you still have to defend it and that may cost you untold thousands of dollars. Further, you do not want to have to suffer the embarrassment of having your email rants read aloud in open court while lawyers parse the words and argue about your intent.

Bottom line, before you dash off that profanity-laden response to your contractor who is “forgetten-up” your renovation job, stop, breathe, think, and revise before you press send.