The Supreme Court was busy in June, ruling on several highly-anticipated and controversial cases. In the last month, the Supreme Court has taken stances (though sometimes failing to set a precedent) on the infamous same-sex wedding cake case, partisan gerrymandering, Trump’s travel ban, and labor unions’ rights, all of which garnered intense public scrutiny. … And then Associate Justice Anthony Kennedy announced his retirement, and hell really broke loose.
Kennedy is a conservative, but he is widely considered to be a swing vote on a politically split Supreme Court; while many of his votes align with his fellow conservative justices, he also voted to legalize same-sex marriage and protect Coloradans from discrimination based on sexual orientation. When he retires in July, Trump gets to appoint his successor. And that is a fact that people get very animated about (myself included).
I’m not going to comment on Kennedy’s retirement because that’s outside the purview of this blog, and everything I would have said has been said already anyway. However, I have heard so many impassioned speeches and strong words over the last few weeks that it got me wondering—people have used a lot of strong language about the Supreme Court, but what about inside it? This is such a sacred and respected institution; in high-stakes and high-emotion cases, does strong language ever make its way into oral arguments?
Has anyone ever even used a swear word in the Supreme Court?
Yes. Yes, they have.
Fair warning, there’s foul language ahead.
I Swear Before the Court
If we’re going to talk about taboo language in the Supreme Court, fuck is a good place to start. In fact, this word has only ever been used before the Supreme Court once: in 1971’s Cohen v. California. The State of California accused Paul Cohen of violating California law that prohibits “maliciously and willfully disturb[ing] the peace” through “offensive conduct” because Cohen wore a jacket in a Los Angeles courthouse corridor protesting the Vietnam War. The jacket said “Fuck the Draft.”
When this case made it to the Supreme Court, the justices were clearly wary of the offensive word that was the central point of the case. At the beginning of the oral argument, Chief Justice Warren E. Burger told Cohen’s lawyer,
“I might suggest to you that, as in most cases, the Court’s thoroughly familiar with the factual setting of this case, and it won’t be necessary for you, I’m sure, to dwell on the facts.”
Berger’s admonition that it wouldn’t be necessary to dwell on the facts clearly implied that no one should utter the four-letter word in the court. Cohen’s lawyer, Melville Nimmer, used the word anyway. To avoid using the word would, in a sense, implicitly acknowledge that it was offensive—at least too offensive to say in front of the court. To fail to say the word was to give it power. Cohen said “Fuck the Draft” and won his case. In the opinion of University of Chicago Professor Geoffrey Stone (and many others), Nimmer won the argument the moment he said the F-word.
That’s the only time someone used the F-word in a Supreme Court oral argument, but there have been several other cases where its absence was notable: in 1978, 2008, and 2011 cases that considered the legality of censoring swear words on the air.
The FCC Battles for Censorship
In 1978, the Supreme Court considered Federal Communications Commission v. Pacifica Foundation. A New York radio station had aired George Carlin’s “Filthy Words” monologue—a comedic bit about all the words that you cannot say on the air, including fuck and shit. The FCC claimed the right to censor these words after a man complained that he heard the explicit radio broadcast in the car with his young son. In the oral arguments, no one said the words in question, and the FCC won that case.
Then, in 2008, the Supreme Court considered Federal Communications Commission v. Fox Television Stations, Inc., in which the FCC sought, again, to enforce their right to ban even the fleeting utterance of F- and S-words on the air. The background: During Fox’s Billboard Music Awards in 2002 and 2003, Cher and Nicole Richie used expletives on the air, and the FCC issued notices of liability to Fox. Previously, the FCC had allowed fleeting uses of these words, but they changed their rules. The Second Circuit Court of Appeals ruled the FCC’s liability order was “arbitrary and capricious,” and the case made its way to the Supreme Court.
During his oral argument, the lawyer representing Fox, Carter G. Phillips, did not use either of the words in question (despite claiming that he would beforehand). The Supreme Court decided in favor of the FCC.
Did the lawyer’s failure to use these words contribute to the stigma surrounding them? Did it give credence to the FCC’s claim that these words constitute “indecent material,” which should be censored? It’s hard to say, but lots of commentators think so.
However, when the FCC made its way to the Supreme Court again in 2011, in a continuation of the 2008 case against Fox, the court ruled differently (even though, again, no one said the words). In Federal Communications Commission v. Fox Television Stations, Inc. (2011), the court debated the constitutionality of the FCC’s vague criteria for regulating indecent speech, specifically looking at the FCC’s liability orders against fleeting expletives on Fox awards shows and partial nudity on ABC’s “NYPD Blue.” In this case, unlike the 2008 case, the Supreme Court ruled in favor of ABC and Fox, because “the Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”
However, the court also failed to set a precedent about censorship and First Amendment rights; the case was a victory for the broadcasters, but one without far-reaching implications. And despite again discussing the F-word’s use on TV, no one mentioned the word before the Supreme Court.
One Man’s Vulgarity Is Another’s Lyric
In the Supreme Court’s opinion on Cohen v. California, Justice John M. Harlan wrote, “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” The whole opinion is a pretty powerful defense of free speech, even when it offends:
“How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. … Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.”
In other words, to allow the government or regulatory bodies to censor certain four-letter words is to risk allowing them to censor the ideas those words express. If you’re merely concerned about obscenity (a slippery concept), where do you draw the line? In her dissent to the Federal Communications Commission v. Fox Television Stations, Inc. (2008), Justice Ruth Bader Ginsburg warned the Supreme Court that words “unpalatable to some may be commonplace for others.”
I quote at length from these opinions to make a point. Words and ideas are not two separate beasts. And that’s not because I think that language dictates our perception of reality, but because the words we choose have emotional weight. Our words have both denotative and connotative meanings; they contribute to tone as much as to comprehension. And so-called vulgar language can have its own power.
For example, studies have shown that swearing actually activates a different part of the brain than everyday speech, and that cursing can have a slight pain-relieving effect. (The podcast Very Bad Words has an excellent episode about this.)
It’s unclear if the 1978 and 2008 cases above would have gone differently if the defendants had used the F-word before the court. But the fact that they didn’t shows that words have power—the power to offend, to shock, to move. Justice Harlan’s opinion in Cohen v. California suggests that words do not only communicate ideas, but “otherwise inexpressible emotions” as well, and this emotive force ought to be protected as an expression of free speech.
You can debate whether or when it’s appropriate to use so-called obscene words, but they have a forcefulness that other language does not. This forcefulness comes from the very fact that they are taboo, and using strong language can make a statement that a subject is serious enough to warrant offending people. Like protesting the draft or asserting your right to free speech even when it’s explicit or vulgar.
It will be interesting to see more censorship cases come to the Supreme Court in the future. Maybe the lawyers in these cases will decide that the Supreme Court is still a place where honoring these taboos matter and refrain from swearing. Maybe they’ll judge that the respect due to the head of the United States’ Judicial Branch warrants a more restrained form of speech than everyday life or even lower courts.
Or maybe they’ll say fuck this shit.
One man’s vulgarity is another’s lyric, after all.