We just reported below on several of the comments Supreme Court Justice Ruth Bader Ginsburg made Friday at the conference of the U.S. Court of Appeals for the 2nd Circuit in Bolton Landing, New York. But she made one additional comment worth special attention, partly answering a nagging question about the oral argument last November in FCC v. Fox Television Stations, the so-called "fleeting expletives" case.
The case involved whether the isolated use of profanities such as the "f-word" or the "s-word" during non-news, over-the-air broadcasts violate the FCC's policy against broadcast indecency. During oral arguments at the 2nd Circuit, Carter Phillips of Sidley Austin repeatedly used the real words -- not the sanitized version -- before the judges. In this preview of the case last year, Phillips said that "unless instructed otherwise," he would use the unvarnished words before the Supreme Court as well.
There was ample precedent for doing so. In the 1971 case Cohen v. California, involving a man arrested for wearing a jacket with the words "Fuck the Draft" in a California courthouse, lawyer Melville Nimmer freely spoke the slogan during argument at the high court -- even after Chief Justice Warren Burger had pointedly told Nimmer that the justices were well aware of the facts of the case and he did not need to recite them.
But in the Fox case, the hourlong argument came and went without either Phillips or then-Solicitor General Gregory Garre using the real words at issue. Both said "f-word" or "s-word" or even, in one instance, "f-bomb." Afterward, Phillips declined to say why not, or whether he had been "instructed otherwise."
During her speech Friday Ginsburg reviewed the Fox case and said, "the words, I'm told, were spoken" at the 2nd Circuit argument. Then came the disclosure. Matter-of-factly she added, "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."
Ginsburg did not say which justices might have been offended, nor did she say who alerted the lawyers -- though it seems unlikely that such a command, speaking for several justices, would have come from anyone other than Chief Justice John Roberts Jr., either directly or through the clerk of the court. Phillips could not be reached for comment, but now it is clear why he did not use the words; the Court told him that some justices would be offended if he did.