Monday, June 15, 2009
Remember back in the fall when the Supreme Court heard oral arguments in the so-called (by me, anyway) "fuck and shit case"?
The case involved a challenge by various television broadcasters to the
FCC's relatively new practice of fining "fleeting expletives," like
when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have
you ever tried to get cow shit out of a Prada purse? It's not so
fucking simple" at the Billboard Music Awards. The most interesting
thing about the oral argument
was that nobody--not the Justices, not the lawyers, nobody--said "fuck"
or "shit." Instead the lawyers used euphemisms like "the f-word" or
"the f-bomb." Awesomely, Justice Scalia made up a euphemism for "fuck"
right in the middle of the oral argument, saying to counsel at one
point, "Don't use golly-waddles instead of the F-word." This "golly
waddles" reference attracted a lot of attention in the blogosphere, and I expect that my own investigative contributions to the discourse--interviewing language expert Steve Pinker about the phrase's lingustic origins and ex-porn-screenwriter Eric Spitznagel about the phrase's erotic potential--will soon be earning me my first Pulitzer.
Anyway, the case is in the news again. Not because of how the Court actually decided the case (it held that that the FCC had not violated the Administrative Procedure Act by changing its position on fleeting expletives without sufficient justification and explanation; the Court was not asked to consider the first amendment arguments in the case, which will be addressed by the second circuit on remand) but because it turns out, according to Justice Ginsburg, who made the revelation at a speech she delivered last Friday, that the reason the lawyers did not say "fuck" or "shit" during the oral argument was because "the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court." Got that? Some of the justices thought it would be "unseemly" for the words "fuck" and "shit" to be used within the hallowed chambers of the marble palace, and so the Court (probably through the Chief Justice) told the lawyers to use euphemisms instead. Yeeks.
Ginsburg did not reveal which Justices thought it would be unseemly to have to hear these awful, horrible words. Nor was there any indication that the justices had instructed the lawyers to use the phrase "golly waddles" instead of "fuck." (Wouldn't that have been glorious?) So, one question that naturally comes to mind is which justices are most likely and least likely to have been the ones to have issued the order not to say "fuck" and "shit"? Moreover, one wonders whether this issue will make it into the Sotomayor confirmation hearings in July. Should the Senate Judiciary Committee ask her point blank if she would mind it if a lawyer said "fuck" in the courtroom? Or what she thinks of "golly waddles" as a possible euphemism? I hope these issues come up so much I can hardly stand it.
(Cross-posted, more or less, on Holy Hullabaloos)
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We have come a long way in terms of respect litigants show for the Court and the Chief. Compare this with the oral argument in Cohen v. California, where Melville Nimmer was about to begin his argument, C.J. Burger told him the Court was familiar with the facts and not to get into detail about what was on the jacket, whereupon Nimmer said OK and proceeded to describe the jacket in full.
Posted by: Howard Wasserman | Jun 15, 2009 10:16:11 AM
Jay, have you asked the advocates in the case about this? I'd like to hear more about this -- not only about how they were informed, but about why they decided not to tell the Court to, so to speak, go screw.
Posted by: Paul Horwitz | Jun 15, 2009 10:59:45 AM
Following up a bit on what Howard said, I recall reading that Nimmer very deliberately described the jacket so as not to inadvertently send the message that the F-word (there I go, being delicate about it ...) is off-limits in a courtroom. I've thought about what I'd do as an advocate in that situation -- it's tough. Nimmer had an important and astute point on the one hand. On the other hand, irony or no irony, Justices might well hold it against the advocate if they're offended.
Posted by: Heidi Kitrosser | Jun 15, 2009 11:29:12 AM
I don't blame the lawyers for following the instructions that they were (apparently) given. (If this round of the case had been directly about the First Amendment, then following Nimmer's lead would have been important. But it wasn't, so it's a closer question of strategy here.) But I am pretty appalled that none of the Justices broke the newly-imposed top-secret rule, or at least stated during the argument that the rule had been imposed. What a creepy charade.
Posted by: Sam | Jun 15, 2009 2:10:30 PM