How to Handle the "F" Word in Court
Everybody knows what the "F" word is, but shouldn't you spell it out in court?
For example, if a defendant used the word as a threat, it just doesn't sound the same to quote: "I'm going to F-word you up!" It could make an emotional difference to a jury. On the other hand, it could offend listeners more than it's worth -- especially if the judge is listening.
That's why it's a good idea to hear what the U.S. Supreme Court said about the F-word.
SCOTUS Hears F*CT Argument
In Iancu v. Brunetti, the Supreme Court listened to lawyers argue about whether the "FUCT" clothing brand could be trademarked. It boiled down to a First Amendment question: is the Lanham Act's ban on "immoral" and "scandalous" words constitutional?
For the average listener, however, it was also about whether you can say the F-word in court. Surprisingly -- or not -- the full-on word never appears in the court transcript. The "F-word" is used only once. Malcom Stewart, arguing for the government, referred to the word this way: "the equivalent of the profane past participle form of a well-known word of profanity and perhaps the paradigmatic word of profanity in our language." It seems like a lot to describe a four-letter word, but there it is.
Justice Stephen Breyer thought about it out loud. He said some words, like racial slurs, have a physiological effect on people. "It's stored in a different place in the brain," he said. "It leads to retention of the word." In other words, lawyers should generally keep the F-word to themselves.
When Is the F-Word OK?
Paul Cohen, a political protester, wore a jacket with the words "Fuck the Draft" stenciled in red on the back. He became famous after he wore the jacket to court.
He was sentenced to 30 days in jail for disturbing the peace, but the U.S. Supreme Court reversed the conviction in 1993. Justice John Marshall Harlan, writing for the majority, said Cohen had a First Amendment right to express his opinion. It may have been the last time the Supreme Court used the actual F-word in an opinion. So unless you are appealing a conviction for using the four-letter word, maybe it's better not to use it in court.
You may have to write it. Just don't say it.
Related Resources:
- The F-Word in Court (The Economist)
- The Most Interesting Mueller Redactions (FindLaw's Strategist)
- BigLaw Lawyer Indicted for Misleading Justice in Mueller Probe (FindLaw's Strategist)