Legal Commentary

Remember back in the fall when the Supreme Court heard oral arguments in the so-called (by me, anyway) "fuck and shit case"?  The case involved a challenge by various television broadcasters to the FCC's relatively new practice of fining "fleeting expletives," like when Bono said "fuck" at the Golden Globes or Nicole Richie said "Have you ever tried to get cow shit out of a Prada purse?  It's not so fucking simple" at the Billboard Music Awards.  The most interesting thing about the oral argument  was that nobody--not the Justices, not the lawyers, nobody--said "fuck" or "shit."  Instead the lawyers used euphemisms like "the f-word" or "the f-bomb."  Awesomely, Justice Scalia made up a euphemism for "fuck" right in the middle of the oral argument, saying to counsel at one point, "Don't use golly-waddles instead of the F-word."  This "golly waddles" reference attracted a lot of attention in the blogosphere, and I expect that my own investigative contributions to the discourse--interviewing language expert Steve Pinker about the phrase's lingustic origins and ex-porn-screenwriter Eric Spitznagel about the phrase's erotic potential--will soon be earning me my first Pulitzer.



Anyway, the case is in the news again.  Not because of how the Court actually decided the case (it held that that the FCC had not violated the Administrative Procedure Act by changing its position on fleeting expletives without sufficient justification and explanation; the Court was not asked to consider the first amendment arguments in the case, which will be addressed by the second circuit on remand) but because it turns out, according to Justice Ginsburg, who made the revelation at a speech she delivered last Friday, that the reason the lawyers did not say "fuck" or "shit" during the oral argument was because "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."  Got that?  Some of the justices thought it would be "unseemly" for the words "fuck" and "shit" to be used within the hallowed chambers of the marble palace, and so the Court (probably through the Chief Justice) told the lawyers to use euphemisms instead.  Yeeks.



Ginsburg did not reveal which Justices thought it would be unseemly to have to hear these awful, horrible words.  Nor was there any indication that the justices had instructed the lawyers to use the phrase "golly waddles" instead of "fuck." (Wouldn't that have been glorious?)  So, one question that naturally comes to mind is which justices are most likely and least likely to have been the ones to have issued the order not to say "fuck" and "shit"?  Moreover, one wonders whether this issue will make it into the Sotomayor confirmation hearings in July.  Should the Senate Judiciary Committee ask her point blank if she would mind it if a lawyer said "fuck" in the courtroom?  Or what she thinks of "golly waddles" as a possible euphemism?  I hope these issues come up so much I can hardly stand it. 

(Cross-posted, more or less, on Holy Hullabaloos)