By granting review in a case challenging the ban on registration of “immoral” or “scandalous” trademarks, the U.S. Supreme Court last week revived a perennial question: will the f-word be spoken aloud in the court’s hallowed chamber?
The case is Iancu v. Brunetti, and the dispute is over streetwear designer Erik Brunetti’s clothing line called FUCT. The government’s petition in the case shuns FUCT’s phonetic twin “fucked,” or the word “fuck,” though the appendix—which includes lower court rulings—uses the words 52 times.
But the prospect of its utterance during oral argument this spring is likely to cause heartburn among the justices, who have long tried to keep profanity from vanquishing civility.
Take the 1971 case of Cohen v. California, a First Amendment case brought by Paul Cohen who was arrested for wearing a “Fuck the Draft” jacket in a Los Angeles courthouse.
When oral argument began, Chief Justice Warren Burger tried to ward off the possibility that Cohen’s lawyer would repeat the full epithet. “I might suggest to you that as in most cases,” Burger said, “the court’s thoroughly familiar with the factual setting of this case, and it will not be necessary for you I’m sure to dwell on the facts.”
But Cohen’s lawyer Melville Nimmer—yes, the original Nimmer of Nimmer on Copyright—did not get the hint. Less than two minutes after Burger’s admonition, Nimmer dwelt on the facts that were printed on his client’s jacket. He let the f-word rip. You can hear it on Oyez.
Fast forward to the 21st century and the “fleeting expletives” case of FCC v. Fox Television Stations, which was argued before the high court twice—first in 2008, then again in 2012. The dispute was over the FCC’s ruling that the f-word and other similar words spoken at Fox live broadcasts violated the commission’s rules against broadcast of “obscene, indecent, or profane language.”
Both times, Sidley Austin partner Carter Phillips represented the Fox stations. Both times, court officials advised Phillips not to speak the fleeting f-words during oral argument.
Phillips said, “I was free to use the words in the Second Circuit and on the courthouse steps after the argument, just not during my 30 minutes at the [Supreme Court] podium.”
In 2008, Phillips said, clerk of the court William Suter and U.S. Solicitor General Gregory Garre both called him with the admonition. In 2012, he recalls that Suter urged him again. Phillips dutifully followed the advice both times, so no f-words disturbed the justices’ tender sensibilities.
Has the court changed since then, to the point where FUCT might be acceptable? Not likely, says Phillips.
“Given that the clerk called me (along with the SG) not once, but twice to say ‘The court does not want to hear those words during argument,’” Phillips said, “I think there is no chance the court will decide that using FUCT now is okay.”