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Monday, February 22, 2021

Fuck everything

Today is the 50th anniversary of argument in Cohen v. California, the "fuck the draft" case. The argument famously began with an admonition from Chief Justice Burger to Cohen attorney Melville Nimmer that "it will not be necessary for you I'm sure to dwell on the facts." By the 1:40 mark, Nimmer began describing what Cohen had done and what was on the jacket. And Justice Harlan's opinion for the Court had no problem describing the jacket in full.

This is a notable anniversary because the Court and litigants have fallen into an unfortunate habit of deciding cases about the constitutionally protected nature of words while refusing to utter those words in argument or write those words in the pages of the U.S. Reports. In Iancu v. Brunnetti, on whether the PTO could refuse a trademark on FUCT, the government's attorney described the mark as the "equivalent of the past participle form of the . . . paradigmatic profane word in our culture." Justice Kagan's majority opinion quoted the SG to describe how someone might read the mark. In FCC v. Fox Television (2009), counsel said "F-word" during argument and Justice Scalia's majority opinion described the FCC as adopting a policy that the "nonliteral (expletive) use of the F- and S-Words could be actionably indecent."

SCOTUS will hear argument in April in Mahanoy Area Sch. Dist. v. B.L., arising from the suspension of a high school student for a snapchat post captioned "fuck school fuck softball fuck cheer fuck everything." (Many First Amendment advocates are concerned the Court will further damage the student-speech doctrine in the first case in which a court of appeals held that Tinker does not apply to out-of-school speech).

This case is different in that the words were used and their use is central to the case, as they were in Cohen. Fox was about FCC policy and Iancu was about (intended) misperception. The central question here is whether the phrase "fuck ____" enjoys First Amendment protection when uttered by a minor outside of school. It will be interesting to see how advocates and the Court argue and decide that question without mentioning the actual words. It will be unfortunate if the trend continues. We can learn a now-50-year-old lesson from Mel Nimmer and Justice Harlan.

Posted by Howard Wasserman on February 22, 2021 at 09:31 AM in First Amendment, Howard Wasserman, Judicial Process | Permalink

Comments

A state NYC pol actually said "fuck" during a MSNBC interview while quoting something Gov. Cuomo (or his people) said about some people he didn't like. A few people on Twitter got the vapors.

Posted by: Joe | Feb 22, 2021 9:20:34 PM

I’ll take Swords for $400, Alex.

Posted by: hardreaders | Feb 22, 2021 5:13:17 PM

Apologies in advance for spreading gossip here and take it for what it's worth, but I was an attorney on Fox v FCC (the last big case I worked on before joining academia - the 2012 version, where the constitutionality of the FCC policy was at issue), and the scuttlebutt on oral argument day was that the Clerk asked Carter Phillips, who was arguing for Fox, to use the F-word rather than the fleeting expletive at issue in the case. Since the Chief Justice hasn't changed since then, I suspect the practice won't either.

Posted by: Enrique Armijo | Feb 22, 2021 11:06:59 AM

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