In a June 5 post, Marty Lederman of SCOTUSblog discussed the FCC v. Fox Television case, which involves "whether fleeting expletives are so inherently shocking as to justify a virtual ban on their broadcast between 6:00 a.m. and 10:00 p.m." As you may recall even if you tend to read this blog rather than something important like SCOTUSblog, that case arises from Bono describing his Golden Globe award as "really f*cking brilliant" in 2003. See "U.S. Supreme Court to Consider Use of Expletives," Lowering the Bar (Mar. 17, 2008).
In his post, Lederman links to the government’s brief in the case and notes that it urges the Court to decide the case on procedural grounds rather than reaching the First Amendment issues. But he also notes that the brief "consistently uses the terms ‘F-Word’ and ‘S-Word’ throughout, rather than" the actual words, which he in fact prints fully, something that for some reason (likely job-keeping-related) I am still reluctant to do. Lederman thinks it is fair to assume that the respondents’ brief "will diverge from the government’s brief in this respect," not because Sidley & Austin lawyers are foulmouths but because f*cking expletives are what the case is all about.
For example, when arguing in the court of appeals, Lederman says, Fox lawyer Carter Phillips "said ‘f*ck’ and ‘f*cking’ and ‘sh*t’ almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation." (Phillips didn’t use asterisks, either.) So there is some reason to think (or hope) that the F-bomb will be dropped early and often even during oral argument in this case.
There is at least some precedent for doing that, even if the Chief Justice suggests you shouldn’t. In Cohen v. California in 1971, the famous "F*ck the Draft" case, Chief Justice Burger started the proceedings by saying "I might suggest to you that . . . the Court is thoroughly familiar with the factual setting of this case and it will not be necessary, I’m sure, to dwell on the facts." Counsel apparently chose to interpret that as a suggestion to keep his factual summary "very brief," which he did — but he recited the full phrase anyway. He just didn’t "dwell" on it.
These cases teach us that it is possible to use the F-bomb in legal proceedings, at least fleetingly, without being sanctioned. What I wish I had known earlier is that it seems to be important to be sure it’s relevant to the facts of the case.