Swearing is not the first thing that comes to mind when preparing for a Supreme Court oral argument. But for lawyers arguing certain types of cases, it is something they must seriously consider.
The issue comes up when a client claims his First Amendment rights were violated when the government punished him for using foul language. This doesn’t happen often because the government doesn’t usually police for the use of expletives. But there are rare instances when using foul language can get one into trouble.
Public schools, for instance, can regulate students’ use of foul language during class time and at school functions. And the Federal Communications Commission (“FCC”) also enforces limits on indecent radio and television broadcasts.
A lawyer representing a defendant in one of these cases inevitably confronts the question of whether to use his client’s offensive language when arguing before the Court. After all, if the lawyer doesn’t use the words, she might implicitly concede that the words are so horrid they warrant suppression. Yet her job as an advocate is to convince the Court of just the opposite.
Alan E. Garfield,
To Swear or not to Swear: Using Foul Language During a Supreme Court Oral Argument,
90 Wash. U. L. Rev. 279
Available at: https://openscholarship.wustl.edu/law_lawreview/vol90/iss1/6