In Cohen v. California, 403 U.S. 15 (1971), a divided Supreme Court ruled that California could not criminalize the simple display of the word “fuck” by a defendant wearing a jacking emblazoned “Fuck the Draft” to a courthouse.

Both the syllabus (the summary set forth at the start of the opinion, which has no actual legal force) and the text use the word without apology:

Appellant was convicted of violating that part of Cal. Penal Code 415 which prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct,” for wearing a jacket bearing the words “Fuck the Draft” in a corridor of the Los Angeles Courthouse.

“On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words `Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.

Compare and contrast that with FCC v. Fox Television Stations, Inc., — U.S. — (2009), decided today, in which the Supreme Court ruled that the FCC did not abuse its statutory authority to impose sanctions for broadcast violations when it sanctioned isolated, non-literal uses of the words “fucking” and “shit.” Here, 38 years later, the Supreme Court uses childish euphemisms and ellipses to convey similar language, both in the syllabus and in the text of the opinion:

This case concerns isolated utterances of the F- and S-Words dur-ing two live broadcasts aired by Fox Television Stations, Inc.

This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for thelast 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Brief for Petitioners 9. The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called“The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Id., at 9–10.

The Supreme Court’s analysis in Fox Television Stations is statutory, not constitutional; the court below did not reach the First Amendment issue, and the Court addressed only the question of the scope of the FCC’s statutory power and the proper exercise thereof. (However, as Eugene Volokh points out, in his concurrence Justice Thomas explicitly questions the continued viability of precedent suggesting that broadcasters have reduced First Amendment protections as a result of the privilege of a broadcast license.) However, the contrast is clear: Cohen resisted government efforts to sanction the use of a dirty word, and Fox Television Stations permitted it.

Query: is it easier to justify such a sanction when a court treats the words at issue as too dirty to set forth in full in a judicial opinion? Is it easier to restrict government power when the court bluntly says the word? In Cohen, publishing the word “fuck” in an opinion by the highest court in the land stripped it of some of its power, tending to support the Court’s proposition that it was, ultimately, just a word and not a disorderly act. By contrast, the now-quaint euphemisms and ellipses of Fox Television Stations subtly suggests they have inherent power and pose inherent harm to society, supporting the point that the Court is making that the FCC may sanction even isolated, non-literal (i.e. “this fucking sucks” rather than “I fucked her”) use of such words.

It would be a mistake to conclude that only lawyers, not judges, indulge in rhetorical tricks. That could explain the difference. Or it could be a psychological tell about the writers. The other interesting factor in play is collegiality — note that the dissenters in this case refrain from spelling out the words in full, even though doing so would, arguably, demystify them and support the dissenters’ arguments.

Edit: Volokh suggests that the usage might be the result of the usage below, and thus the state of the record. That would undercut my observation. However, since it’s perfectly clear from the record what the word is, I’m still not sure why the Court can’t be consistent across cases in usage.

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