Editor’s Note: The following article is from the Planet Waves blog Psychsound, written by Steve Bergstein, our contributing editor and a civil rights lawyer who resides in upstate New York. –RA
In the early 1970s, the Supreme Court heard a case about an anti-war protester who walked through a courthouse wearing a jacket that said “Fuck the Draft.” When the Supreme Court heard an oral argument on whether the protester had the First Amendment right to do this, his lawyer was told not to use the word “fuck” in addressing the Supreme Court justices, who came from an older generation that did not throw around four-letter words in mixed company.
But the lawyer thought he had no choice but to say “fuck” in the ornate courthouse that is the symbol of American justice. He figured that it would hurt the case if he was afraid to say it when it counted most. He made the stuffy Chief Justice angry, but the lawyer won the case, and today Cohen vs. California is a landmark free-speech case, known for its logic that “one man’s vulgarity is another’s lyric.”
The word “fuck” is again before the Supreme Court, which heard argument a few weeks ago on whether the FCC can penalize TV stations when foul language makes it past the censors on live broadcasts. We are not talking about sitcom scripts or movie dialogue but programs like awards ceremonies when superstars who can’t control themselves say Fuck or Shit on live TV. We call that the “fleeting expletive.”
The Court heard the case on Election Day, an interesting coincidence. I have noted that this year’s presidential election has enormous consequences for the Supreme Court because some of the justices are nearing retirement and President Obama may have a chance to appoint two or three replacements. Change is near, and not just in the potential changes on the Court. According to a website that tracks Supreme Court activity, in the fleeting expletives case, “The court stenographer’s report indicates that ‘F-word’ appears in the transcript 16 times; that ‘F-bomb’ appears once, and that ‘S-word’ was spoken six times.” What caused the Supreme Court to blush in 1971 barely raises an eyebrow today, except that you still can’t say Fuck in court. Saying the “F-word” is enough.