Legal Commentary

The pre-argument gag rule that the Court imposed in FCC v. Fox Television earlier this term, as described in Jay's post is appalling. If the words "fuck" and "shit" (see, no euphemisms here) are too unseemly for the Court's "hallowed," doesn't that effectively prejudge the question of their constitutional and legal status? How can the Court genuinely evaluate the words as a legal matter if the Court cannot even utter them or hear them uttered? It would be as if the Court were deciding whether a movie is constitutionally protected without watching the movie or discussing what is going on in the movie.* Or evaluating whether some photographs should be admissible without viewing or discussing what is depicted in those photos. Or evaluating whether racist or sexist words should be protected without discussing these words and their meaning and their context.

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.

• Justice Douglas famously refused to watch the movies in the Court's obscenity cases, on his belief that it really did not matter what was in the movie because it was constitutionally protected. And I suppose we could criticize him for prejudging matters, just as we would if Justice Scalia refused to watch the movies because regardless of what was depicted, it was obscene. The difference, it seems to me, is that Douglas was not saying that the movies are OK (or potentially OK) for society at large but inappropriate within the courtroom because the courtroom is somehow "cleaner" than the hurly-burly of daily conversation.