Many First Amendment cases that come before the Supreme Court involve the F word. "Fuck," to be exact. According to my research, the word "fuck" appears in exactly nine cases, including the famous dispute over George Carlin's "seven dirty words you can't say on television" and a case arising from Long Island in the early 1980's involving library censorship.

The most famous case arising from "fuck" is Cohen v. California, a Vietnam War era case where a guy walked through a local courthouse with a jacket that read "Fuck the Draft." Cohen was arrested for violating decency laws, but the Supreme Court declared the arrest unlawful because Cohen had a constitutional right to express himself this way. In Cohen v. California and other cases, the Supreme Court was not afraid to use the F-word when appropriate to outline the issues in the dispute. So in the library censorship case, Island Trees School District v. Pico, Justice Powell, a courtly southerner, appended to his dissenting opinion excerpts from the offending books. Justice Powell did not like the Court's result in the case (which held that local school boards cannot remove books from the shelves out of disagreement with the books' content), but he had no problem at all with broadcasting in a Supreme Court opinion the offending language.

This year, the Supreme Court heard another case involving "fuck," a dispute over the FCC's punishment against TV stations for the "fleeting expletive," where toilet-tounged celebrities slip in a few curse words in telling the world on live television how honored they are to win the Golden Globe Award. But that decision does not cite any of the curse words. And the lawyers arguing the case did not use that language either, even though that language was at the heart of the case. This was unusual. In the "fuck the draft" case back in 1971, Cohen's lawyer went out of his way to say "fuck" even though Chief Justice Burger (a stuffy Nixonite) made it clear that this language was not necessary; the attorney thought that self-censorship would hurt his argument that "fuck the draft" is free speech even at the courthouse. Cohen's lawyer won the case, and that story is now a well-known example of why lawyers should give it their all in court.

Now we know why the lawyers in the "fleeting expletives" case did not use the F-word. They were told watch their mouths. Last week, Justice Ruth Bader Ginsburg told a group of federal judges in New York that "the lawyers were alerted that some of the justices might find that unseemly, so only the letters 'f' and 's' were used in our court." I doubt that Ginsburg was behind this gag-rule; she used to work for the ACLU. One journalist thinks the order came from Chief Justice Roberts, a clean-cut fellow who voted with the majority which sided with the FCC in that case.

I guess we are afraid of F-word. Even I don't like typing the word "fuck" all that often. We should not be afraid of the F-word in court if the F-word is a major part of the case. Words like this are spoken in court all the time in sexual harassment and police cases, I can tell you that. I doubt the judges and juries even flinch after hearing that language over the course of a trial. But watch your mouth in the Supreme Court, the bastion of free speech.