In his final merits filing, outgoing SG Paul Clement submitted this topside brief Monday on behalf of the FCC in No. 07-582, FCC v. Fox Television. I discussed the case here when the Court granted certiorari.

The government brief deals almost exclusively with the APA question on which cert. was granted, and not on the First Amendment concerns that are quite obviously driving the case and the court of appeals’ decision below. Indeed, the SG urges the Court not to reach the constitutional question, which will almost certainly receive more extensive treatment in the respondents’ and amici’s briefs and in the SG’s reply.

By the way, other than in describing the broadcasts in question in the Statement of Facts, the SG Brief consistently uses the terms “F-Word” and “S-word” throughout, rather than “fuck” and “shit.” I think it’s fair to assume that Sidley & Austin’s brief for the respondents will diverge from the government’s brief in this respect — not because of a difference in counsel’s sensibilities or etiquette, but because the whole case is about whether fleeting expletives are so inherently shocking as to justify a virtual ban on their broadcast between 6:00 a.m and 10:00 p.m. As one press report recounted, in his argument before the court of appeals, Fox lawyer Carter Phillips “said ‘fuck’ and ‘fucking’ and ‘shit’ almost immediately in outlining the case, as if to get the words out, on the table and unabashedly part of the conversation.”

This recalls Professor Mel Nimmer’s famous argument in Cohen v. California in February 1971, which you can hear here. As soon as Nimmer approached the bench to argue, Chief Justice Burger immediately admonished him: “Mr. Nimmer, you may proceed whenever you’re ready. I might suggest to you that . . . the Court is thoroughly familiar with the factual setting of this case and it will not be
necessary for you, I’m sure, to dwell on the facts.” This was, of course, a signal to Nimmer that he should refrain from quoting, in the Court, the words on Cohen’s jacket. Nonplussed, Nimmer responded to the Chief’s suggestion by saying, “At the Chief Justice’s suggestion, I certainly will keep very brief the statement of facts,” and then proceeded to explain that Cohen had been “convicted of engaging in tumultuous and offensive conduct, in violation of the California Disturbing the Peace Statute . . . . What this young man did “was to walk through a courthouse corridor in Los Angeles County on his way to a courtroom where he had some business . . . . While walking through that corridor he was wearing a jacket upon which were inscribed the words ‘Fuck the Draft.'”

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