A Dysfunctional–Often Harmful–Mix and How to Fix It
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Excerpt from the Introduction

Words have enormous power. They are used to inform, convince, cajole, comfort, explain, persuade, threaten, vent, badger, placate, plead, and so on and so on and so on. Almost invariably, words have consequences both for those who think or utter or write them, as well as for those who hear or read them. They have, in sum, both internal and external impacts, as Aldous Huxley, an esteemed British author of the last century aptly observed: “Words have power to mould men’s thinking, to canalize their feelings, to direct their willing and acting.” [1]

The words that are my special concern here are those that singly, in phrases, in conversations, in books and plays and speeches and lectures and a variety of other contexts, frame and fashion ideas and attitudes—both conscious and unconscious—about old age and about old people. Even more particularly, my focus is on the ways in which words so often are used, intentionally or otherwise, to do harm to the elderly in America. [2]

The animating force for this focus is my underlying thesis that there is a closed circle of reinforcing cause and effect whereby the bias of old-ageism generates pernicious utterances and depictions, and pernicious utterances and depictions in turn nurture and even help to generate and perpetuate the bigotry of old-ageism. This bigotry offends fundamental notions of fairness, equality, and human dignity. That’s bad enough. What makes this bias even worse is that it is very likely to expand in the future in terms of both perpetrators and victims as the older populations of the United States and most other countries grow enormously, [3] bringing with this growth increasing society- and economy-disrupting tensions arising from exploding pension expenditures, continually soaring health care costs, and other rising social service demands. There is the real danger of both near-term and more distant political and social conflicts that very likely will serve no good ends and will yield bad consequences for both the old and the not-yet-old.

Sometimes, the harm that is inflicted by old-ageist rhetoric and imagery arrives quietly, in the form of ostensibly innocuous, but in fact insidious, commentary. For example, in newspaper articles and television features reporters and other expositers often express amazement at the unexpectedly impressive fitness or appearance or feats of older persons. This seemingly commendable attention to the exceptional man or woman actually is the stalking horse for a much grimmer, subliminal message: the usual, expectable performance of typical older men and women falls far short of that exemplified by this anomalous, aberrant individual.

Insidious, but ostensibly innocent, old-ageism (if old-ageism can ever really be “innocent”) also appears in other seemingly innocuous places and ways. Take, for example, birthday cards. Yes, birthday cards. A perusal of the aisles of one’s local card store or Walgreen’s quickly reveals a distressing commonality of themes: a major portion of the so-called humorous cards targeted for those 40 and over typically demean looming or actual old age by dwelling upon the celebrant’s present or future forgetfulness, on the loss of sexual prowess (men take the major hit here), on the loss of physical attractiveness (here women are the particular foils), and on digestive problems, i.e., constipation. Thereby, the cards’ ostensibly funny spoofs of the foibles of old age actually serve to reinforce the notion that what old age is all about is loss and decline.

Sometimes harmful language appears in newspaper articles and journals and books that, without expressly damning life in old age as dismal, nonetheless dwell upon old age as a negative state of being. Sometimes pernicious old-ageist notions are delivered blatantly through pejorative caricatures of older men and women in plays, television programs, and movies. Injury also often is openly inflicted by demeaning stand-up comedians’ routines and jokes that ridicule, often by portraying stereotypical cranky or eccentric or forgetful oldsters. Sometimes the vehicles for delivering harm are pejorative epithets and derogatory adjectives: old fart, old goat, geezer, dirty old man, crone, old bat, decrepit, stodgy, used up, and so on. And there are still more ways, as well, whereby the rhetoric of insult or misconception or downright dislike holds sway, inculcating and indoctrinating negative perceptions and attitudes.

Whatever the means of communication and whoever the communicators, the messages are pretty much consistently negative ones: old age is bad, older people are defective.

Let me be clear: I am not trying to sugar-coat reality. As the saying goes, “old age is not for sissies.” The later years are for most oldsters, as well as their families, increasingly parlous ones physically, socially, emotionally, and financially. Diminished social and workplace roles, increasing health problems, and narrowing circles of surviving friends and family are all too common. So negative language and stereotypes and jokes directed to the downsides of old age certainly have elements of truth supporting them. Even so, we need not add to the difficulties of old age the derogation, denigration, and deprecation so often used in public and private discourse. Nor should we create and perpetuate negative perceptions that, albeit partly accurate, also are partly in error.

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My initial task involves detailing the contours of old-ageism. I then turn to the ways in which language is used—sometimes intentionally, sometimes adventitiously—to directly or indirectly harm the old. I next address the import of the First Amendment’s protection of speech, while also exploring various legal theories that might be used to secure at least some amelioration, if not total eradication, of old-ageist speech. I am not seeking to set down an encyclopedic discussion of law and legal theory, but rather to set forth a literate, but abbreviated, exposition (primarily for the non-lawyer) as to how law may or may not serve as an effective tool for dealing with age-based discrimination. Finally, I turn to non-law-based approaches that may serve to diminish the old-ageism that infiltrates our written and oral means of communicating with each other.

My aims are four-fold:
• to unmask the sources of old-ageism;
• to detail the ways in which language is by far the primary mechanism for creating, reinforcing, and perpetuating old-ageism;
• to assess the possibilities of using the law—my field of training and professional endeavor—to combat pernicious old-ageist language; and
• to highlight non-law-based approaches to address and eradicate this language. [4]

Notes

[1] Aldous Huxley, Words and Their Meanings 9 (1940).

[2] In very large measure my focus is on language used by speakers who are speaking about, or to, older men and women. Conversely, I generally am not focusing on how the elderly speak to others, young or old. As to this latter issue, see generally Nikolas Coupland, Justine Coupland and Howard Giles, Language, Society and the Elderly: Discourse, Identity and Aging (1991); Mary Lee Hummert, John M. Wiemann, and Jon F. Nussbaum, eds., Interpersonal Communication in Older Adulthood (1994). Nor am I concerned, for the most part, with the capacity of impaired older people to understand other speakers. See Gerontological Society of America, Communicating with Older Adults (2012).

Admittedly, some declines do occur with age, even among those who are not clinically impaired. Even so, “the changes in communication skills that do occur among many healthy elderly tend to be small. Compensation can readily be made for most of these gradual cognitive and communication changes.” Still, it must be conceded that “[e]ven though differences can be detected on formal testing for the young-old (e.g., ages 60–75), the changes for the old-old (e.g., over age 80) are much more marked.” Ellen B. Ryan, Howard Giles, Giampiero Bartolucci and Karen Henwood, Psycholinguistic and Social Psychological Components of Communication by and with the Elderly, 6 Language & Communication 1, at 2 (1986). As for such changes, studies establish that the speed of information processing declines with age, but, on the other hand, “[f]or healthy elderly individuals, the impact of . . . gradual changes is primarily in their need for more time in laboratory tasks and [only] eventually in a number of everyday activities.” Ibid. According to one study, “the size of active vocabulary decreases gradually in the seventh decade with a sharper decline after the age of 70. . . . However, conversational expression of meaning is still typically effective.” Id. at 4.

There is an increase in difficulties with memory as individuals advance into old age, also. Ibid. “Perhaps the most widespread age-related change that affects communication is that of hearing acuity, especially for high frequency sounds. . . . More serious than actual loss of hearing acuity for pure sounds is the loss of hearing for speech, particularly when the speech signal is degraded or in competition with other sounds.” Id. at 3.

[3] The suggestion is often made that as older men and women in the U.S. increase both in absolute numbers and as a percentage of the population, there will be a diminution of age bias. That is a possibility, but I think it not likely because, numbers aside, many of the causes of this bias, as discussed in Chapter 1, will continue, rather than themselves diminishing.

[4] I readily acknowledge that a focus on language in no way suffices to cover the ways in which people communicate. Paintings and music can be enormously powerful expressions of artists’ and musicians’ emotions and attitudes. The way in which a person dresses communicates information about her or him. And of course facial expressions and body movements send powerful signals to their viewers:

The human face is capable of 250,000 different expressions, many of them extremely subtle. The head, fingers, hands, arms, shoulders, trunk, hips, and legs, can all be used to signify meaning. All these potential sources of communication can be used in multiple combinations, meaning that literally millions of messages can be transmitted through the language of body movement. If two people were enclosed in a box and every aspect of their behavior [were] recorded down to microscopic levels, it would be possible to isolate as many as 5,000 separate bits of information every second.

Ray L. Birdwhistell, Kinesics and Context 123 (1970). (For a critique of Professor Birdwhistell’s work, see Steven Jolly, Understanding Body Language: Birdwhistell’s Theory of Kinesics, 5 Corporate Communications: An International Journal 133 (2000).) There have to be some limits to my endeavor, and thus I have elected to address, almost exclusively, language, which for a lawyer such as myself is the arena most compatible with my skills and expertise.