In 1971, when the Court held in Cohen v. California that a state could not constitutionally make it a crime to use the word fuck in public, it used the word fuck. In 1978, when the Court upheld the FCC's rule banning the use of "indecent" words over the airwaves, it quoted in full George Carlin's monologue, including the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those words, according to Carlin, were the "ones that will curve your spine [and] grow hair on your hands." When the Court of Appeals decided this very case (twice), it had no qualms about using the actual words that were at issue in the case. But Justice Kennedy had to use ***s to avoid saying fuck.Hey, why did Professor Stone go straight from gruesome wounds to vaginas? Because he's not being careful and sensitive and anticipating all manner of complaints. He's being Carlinesque and confrontational.
This is not what lawyers and judges do. Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal vaginas (unlike some legislators these days).
... Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.Perhaps the Justices thought that to write out the words made them seem to have an unprofessional favoritism toward the folks who want to be free to (fleetingly) utter expletives.
When Melville Nimmer represented Paul Cohen in the Supreme Court in Cohen v. California, he knew he had to say the word fuck in the Supreme Court for the first time in its history. He also knew that Chief Justice Burger did not want this to happen. Sure enough, when Nimmer approached the lectern to make his argument, Burger leaned over the bench and instructed Nimmer, "Counsel, we are familiar with the facts of this case. You can dispense with them and move directly to your legal argument." To which Nimmer replied, "Of course, Your Honor. Suffice it to say that my client was convicted of disturbing the peace for wearing a jacket in public bearing the words 'Fuck the Draft.'" It was at that moment that he won his case, because lo and behold the walls of the Court did not crumble.But you see the enthusiasm there. It's not just about willingness to plainly state ugly facts, as in a murder case. Lawyers and judges who must describe brutal murders in plain English are not doing a murder. But to say "Fuck the Draft" in court is to do what Paul Cohen himself did — say "Fuck the Draft" in court. (It wasn't just "in public." He wore his "Fuck the Draft" jacket in a municipal courthouse.)
That Melville Nimmer anecdote thrills us — some of us — because we identify with the expression in those words: Fuck the Draft. The Supreme Court never helped anybody who tried to litigate against the war in Vietnam, so there was emotional fire and resonance to the utterance right there of the words "Fuck the Draft." Professor Stone portrays it as pure, stolid, emotionless professionalism, but I have my doubts.
That said, when I teach Cohen v. California to a law school class, I say "Fuck the Draft," and I say it sincerely believing that not to say it is prissy and unprofessional. And if you said to me Althouse, admit it, you have some fun there with the opportunity to say "Fuck the Draft" with impunity, I would say: The Supreme Court writes "Fuck the Draft," which makes it the affirmative act to avoid saying "fuck," and the default should be passivity.
Which of course means that if I teach the new case — FCC v. Fox Television Stations — I won't be saying "Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple," which is really what was said on TV by a person whom the Supreme Court amusingly (or professionally) refers to as "a person named Nicole Richie." I'll say "Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple."
Actually, I don't know how to say that out loud. I don't know how to be passively professional about asterisks. Anthony Kennedy has left me in a quandry.