The Penis Mightier
Why is it worse to use problematic language to describe something that to acknowledge that thing is actually problematic?
I think most people have missed the point of Judge VanDyke's "swinging dicks" dissental. Of course he used vulgar and coarse language. (I for one would not use this approach in my writing.) That was VanDyke's point. He was trying to draw a double standard. Thirty members of his court expressed their outrage at VanDyke writing about "swinging dicks," but not one of them was willing to review a case that involved actual "swinging dicks." How can it be that describing "swinging dicks" in a women's spa is a bigger problem than the state permitting actual "swinging dicks" in a women's spa? Judge VanDyke proves the old saw is true: "The pen is mightier than the sword." Or, as Sean Connery would say on SNL Celebrity Jeopardy!, "The penis mightier."
This is a common feature of contemporary debate: it is worse to use problematic language to describe something that to acknowledge how that thing is actually problematic.
First, the most salient example concerns abortion. For years, people were appalled when pro life advocates would display gruesome photographs and videos of abortions being performed. To this day, there is outrage at the detailed statement of facts in Gonzales v. Carhart about how partial birth abortions function. Justice Kennedy's majority opinion felt compelled to explain why he was using such graphic language: " The Act proscribes a particular manner of ending fetal life, so it is necessary here, as it was in Stenberg, to discuss abortion procedures in some detail." Here is an excerpt:
A doctor must first dilate the cervix at least to the extent needed to insert surgical instruments into the uterus and to maneuver them to evacuate the fetus. The steps taken to cause dilation differ by physician and gestational age of the fetus. A doctor often begins the dilation process by inserting osmotic dilators, such as laminaria (sticks of seaweed), into the cervix. The dilators can be used in combination with drugs, such as misoprostol, that increase dilation. The resulting amount of dilation is not uniform, and a doctor does not know in advance how an individual patient will respond. In general the longer dilators remain in the cervix, the more it will dilate. Yet the length of time doctors employ osmotic dilators varies. Some may keep dilators in the cervix for two days, while others use dilators for a day or less.
After sufficient dilation the surgical operation can commence. The woman is placed under general anesthesia or conscious sedation. The doctor, often guided by ultrasound, inserts grasping forceps through the woman's cervix and into the uterus to grab the fetus. The doctor grips a fetal part with the forceps and pulls it back through the cervix and vagina, continuing to pull even after meeting resistance from the cervix. The friction causes the fetus to tear apart. For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman. The process of evacuating the fetus piece by piece continues until it has been completely removed. A doctor may make 10 to 15 passes with the forceps to evacuate the fetus in its entirety, though sometimes removal is completed with fewer passes. Once the fetus has been evacuated, the placenta and any remaining fetal material are suctioned or scraped out of the uterus. The doctor examines the different parts to ensure the entire fetal body has been removed.
Some doctors, especially later in the second trimester, may kill the fetus a day or two before performing the surgical evacuation. They inject digoxin or potassium chloride into the fetus, the umbilical cord, or the amniotic fluid. Fetal demise may cause contractions and make greater dilation possible. Once dead, moreover, the fetus' body will soften, and its removal will be easier. Other doctors refrain from injecting chemical agents, believing it adds risk with little or no medical benefit.
The real problem was that those abortions were actually being performed, not that judges accurately described them.
Can you imagine if Judge VanDyke included in his opinion a photograph from the record of a "swinging dick" in a women's spa? There would be outrage that VanDyke included the graphic photo, but silence about the fact that the photo exists. (I doubt any such photo exists in the record, but in a normal case, discovery would generally require showing what it is the plaintiff seeks to do, even in a redacted form.) How many members of the Ninth Circuit would take their young daughter to the Olympus Spa?
Second, there is almost a visceral reaction to "misgendering" a transgender person--even by describing the person's anatomy. There is even greater opposition to describing what happens at "Drag Races" and other "Drag Queen" story times where children are present. But descriptions of these actions are an effective way to demonstrate why governments seek to regulate them. Consider these findings of fact from Spectrum WT v. Wendler, a case from NDTX about a drag event at a public university where children could attend. Judge Matt Kacsmaryk spares no details:
The 2023 on-campus show "was to be emceed" by a man named Michael Arredondo, whose drag performer name is "Myss Myka." Spectrum WT v. Wendler, 151 F.4th 714, 719 (5th Cir. 2025) (citation modified), reh'g en banc granted, opinion vacated, 157 F.4th 678 (5th Cir. 2025). Michael "had performed in a highly sexual drag show" in February 2023, about a month before Spectrum's show would have taken place in Legacy Hall. Id. He also performed in the off-campus March 2023 show—and would have performed in Legacy Hall, had the show taken place there. Myss Myka's performances routinely veer into salacious, sexualized conduct. For instance, in a five-minute span during a February 2023 performance, he made the sign of the cross before gradually stripping off his angel costume, twerking, and graphically simulating male masturbation onto an audience member. He also squeezed his prosthetic breasts together suggestively and placed a spectator's hand on them. He ended his routine by grinding his near-bare crotch on another audience member, an act sometimes described as "frottage." Spectrum "d[id] not dispute" that Michael engaged in this behavior during its appeal of this Court's denial of a preliminary injunction. Spectrum WT, 151 F.4th at 719 n.2.
Spectrum expressly invited Myss Myka to host its 2023 and 2024 drag shows. Children—of any age—would have been present at these shows. Spectrum's only requirement was that minor children be accompanied by a parent or guardian. But Spectrum had no way to ascertain whether a child was accompanied by a parent or guardian, as opposed to any other adult. Nor could Spectrum have known whether participating PUP students were minors: PUP participants receive the same student ID as full-time West Texas A&M students, and those IDs do not list students' ages. Even professors do not know which of their students are PUP students.
Don't skim it. Read it. Elites will be appalled these words appear in a judicial decision, but not that this behavior actually exists in the presence of children. How many members of the Ninth Circuit would take their young children to this drag show?
The court also included photos. I include them after the jump, because they are not safe for work, but apparently were safe for children:
Third, it is verboten to use the phrase "illegal alien" to avoid offense, but progressives downplay actual crimes committed by illegal aliens. Consider this recent editorial in the Wall Street Journal about how a progressive prosecutor in Fairfax County declines to prosecute people who could be subject to deportation. His policy is to "consider immigration consequences where possible and where doing so accords with justice."
Police allege that Abdul Jalloh, an illegal alien from Sierra Leone and a violent repeat offender, exited a bus with Minter and then stabbed her to death at the bus stop. Mr. Jalloh had been arrested more than 30 times for a litany of serious offenses. Maj. Jeffrey Mauro of Fairfax County's Mount Vernon District Station reportedly said that his station alone had "numerous dealings with" the suspect, and Capt. James Curry of Fairfax County Police said the department had "178 involvements" with him. Mr. Jalloh's criminal history includes five malicious-wounding charges—Virginia's equivalent of attempted murder—and three assault-and-battery charges. Mr. Descano's office dropped all but one of those charges. In the case in which Mr. Descano secured a conviction, Mr. Jalloh was sentenced to seven years, five of which were suspended.
While out on bond awaiting sentencing, Mr. Jalloh allegedly committed another stabbing. Then, within weeks of his release, he allegedly committed another. Released emails show that police urged prosecutors to pursue charges against Mr. Jalloh. Mr. Mauro of the Mount Vernon office wrote to Descano deputy Jenna Sands last year that Mr. Jalloh's behavior "appears to be escalating and becoming more violent and explosive" and that he was concerned it was "not a question of if, but rather when he will maliciously wound (or worse) again." Instead, Mr. Descano's office dropped the new charges and terminated Mr. Jalloh's supervision months before he allegedly murdered Minter.
I am not making any broad claims about whether illegal aliens are more or less likely to commit crimes than American citizens. My point is different. When such crimes occur, they should not be diminished for political purposes. These crimes should inform debates about immigration policy.
Fourth, I have long studied the phenomenon of mass shootings. My 2014 article, The Shooting Cycle, explains how much of the opposition to mass shootings follows a predictable political cycle. If the assailant fits the right mold--white and conservative--the story will dominate the headlines for a long time. But if the perpetrator falls into some "oppressed" demographic, the story vanishes. Moreover, the media demonstrates little curiosity in investigating why the person came to be a mass murderer. My long-held suspicion is that the media is so adverse to describing minorities in negative language that they avoid discussing their heinous acts. Focusing on a person's religion or calling them an illegal alien is beyond the pale. So to avoid feeding into that narrative, it is better to simply ignore what they've done.
Consider a few recent terrorist attacks involving naturalized citizens who committed acts of terror. There was a shooting at a popular bar in Austin that started blowing up on my news feed. Then it turned out the assailant was a naturalized citizen from Senegal, who was wearing a "Property of Allah" hoodie, had an Iran flag T-shirt during attack, and had photos of Iranian leaders at home. The story vanished. There was a shooting at Old Dominion University in Virginia that seems to already have been forgotten. The assailant was a naturalized citizen from Sierra Leone, had previously been convicted of supporting the Islamic State, and yelled "Allahu Akbar" during the attack. Did you hear these facts? Thankfully, members of the ROTC subdued and killed the assailant. Otherwise he would have inflicted more bloodshed. Just yesterday, a naturalized citizen from Lebanon drove his car into a Michigan synagogue and school, intent on killing as many Jews as he could. Thank the lord there were no casualties, but Jewish students across the country now fear going to school. This story will be off the headlines by Monday. But maybe, just maybe, there is a problem with naturalized citizens engaging in acts of terror. There is less that can be down about homegrown terrorists, but something be done about admitting those who are or become radicalized. Can we discuss it or is that just hateful?
The problem with speech codes is that they prohibit people from talking about the actual world. Using euphemisms signals that society is unwilling to address problems. And this asymmetry only goes one way. Liberals can speak, conservatives cannot. For that reason, I appreciate Eugene Volokh's policy of not expurgating offensive language.