When the Supremes decided FCC v. Fox Television, the “fleeting expletives” case, much was made of the Court’s use of “F-word” and “S-word” (Turd Ferguson: I’ll take sword for $200, Alex) in the decision rather than the actual word spoken.  In a speech before the 2d Circuit conference, Justice Ruth Bader Ginsberg spilled the beans on what really happened behind the scenes.

So the shift was predestined to protect the sensitive ears of the justices.  This brought the ridicule of two of the boldest legal scholars, Jay Wexler and Howard Wasserman.  Wexler called the justices “prudes”, while Wasserman took the more substantive approach of challenging the sanitization of the courtroom:

It is precisely within the “hallowed” walls of the courtroom (and the classroom, I would add) that we can and should truly deliberate and reason about how we should understand these matters, openly mentioning and discussing things that we might not (or should not) mention in society itself. The courtroom is the last place in which anything that is the subject of a legal dispute should be deemed too unseemly for full discussion and consideration, which necessarily presumes that the unmentionable must be mentioned.

Both Wexler and Wasserman make a point to use the specific words in issue liberally, both to desensitize and to demonstrate that they are mere words, carrying no pain of death upon sight or hearing. 

While I’ve no doubt that somewhere in this vast land there are people who have never uttered either word, I’ve never met one.  Both words are, for better or worse, rather common.  I’ve taken the liberty of having both my children, at a tender age, speak the words aloud to get them over the taboo and to teach them, as Wasserman does, that they are mere words and carry no greater weight than others.  But I then explain that people find the words jarring, particularly out of the mouths of children, and will think poorly of them for using such words.  I explain further that the language has many other words that can be used to express their thoughts, and that these words aren’t needed to make their point clear.  Curses won’t hurt them, but won’t help them either. 

No matter how hard I try, I can find no flaws in the reasoning of either Wexler or Wasserman.  And yet, if I was arguing the case before the 2d Circuit or the Supreme Court, I would not have used the particular words involved.  In fact, there is likely no reason to use the requested euphemisms, nor even Justice Scalia’s personal choice, “golly-waddles”. 

It’s true that there is something about the courtroom, even the lowliest, dirtiest, smallest trial courtroom, that evokes a sense of formality in me.  Much like my compulsion to wear a suit and tie in court, even though I could get away with a sports jacket and perhaps a turtle neck, too many years of formality have made it impossible for me to suddenly treat the court like the playground.  I can’t do it. 

It’s not that I have specific respect for individuals I’ve known for years who later don the robes.  They didn’t get any smarter, taller or better looking.  They tend to be the same jerks they were before, and usually are far more offensive.  But I still call them judge or your honor, even if there is the slightest hint of an edge to my voice.  I can’t help it.

So I am absolutely persuaded by Wexler and Wasserman that it was both wrong, and foolish, for the court to instruct the lawyers arguing the “fleeting expletives” case to avoid using the actual words upon which the justices would render a decision.  No court should demand that reality be sanitized to protect the sensibilities of its judges.  If anything, the judges should be desensitized so that their delicate sensibilities don’t interfere with their ability to rationally decide the cases before them.

And yet, I still wouldn’t have said the words.  And you won’t find them in this post.  I trust that no one will miss the point because of the omission.