When Mel Nimmer stood up to argue on Cohen's
behalf, Burger immediately instructed him as follows: "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 refrain from quoting the jacket. Nimmer, to his
credit, responded to the Chief's suggestion by saying, "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" -- pregnant pause -- "was to walk through a courthouse corridor
in Los Angeles County . . . wearing a jacket upon which were inscribed the words
'Fuck the Draft.'"!
I forgot who told me this -- and perhaps it's
apocryphal -- but apparently Nimmer had decided before the arguent that he
had little choice but to speak the words without reservation in order to win the
case.
----- Original Message -----
From: "Douglas Laycock" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
Sent: Monday, February 09, 2004 3:04
PM
Subject: RE: F--- The Draft
> generation that taught from World War II to the mid-70s, told my class at
> Chicago that there had been a substantial debate within the Court about
> whether to use the F word. He did not tell us who was on which side, or
> whether Harlan was reacting to Burger's timidity.
>
> At 02:42 PM 2/9/2004 -0500, you wrote:
> >I cannot vouch for the story, but someone I thought at the time was reliable
> >(a clerk?) tells me that Burger was so pedantic about not using the F word
> >in Cohens that Harlan-hardly a libertine- was so put off that he insisted on
> >using the F word spelled out simply to spite Burger. It is not the only
> >spite Burger story circulating
> >Marc Stern
> >-----Original Message-----
> >From: [EMAIL PROTECTED]
> >[mailto:[EMAIL PROTECTED] Behalf Of Rick Duncan
> >Sent: Monday, February 09, 2004 2:38 PM
> >To: Law & Religion issues for Law Academics
> >Subject: F--- The Draft
> >
> >Another observation about how far we have gone over
> >the cliff: We have gone from cases deciding whether a
> >person could be punished for saying "f--- the draft"
> >to cases deciding whether a deeply religious student
> >can be punished for refusing to say the "F" word.
> >
> >Is this cultural progress or what?
> >
> >Rick Duncan
> >
> >
> >--- "A.E. Brownstein" <[EMAIL PROTECTED]>
> >wrote:
> > > There are a lot of threads here.
> > >
> > > 1. My daughter's willingness to sing religious songs
> > > of other faiths when
> > > she was in the High School Choir, and her comfort
> > > level with such
> > > performances, was heavily influenced by the
> > > diversity or lack of diversity
> > > of the program. If songs of different faiths were
> > > included, I think she
> > > felt more distance between the personal beliefs of
> > > the singers and the
> > > message of the lyrics. She also thought that a
> > > diverse program was
> > > respectful of the diversity of the choir members and
> > > the community.
> > >
> > > 2. I'm not sure there is an exact analogy between an
> > > actor reciting lines
> > > spoken by a character in a play and a singer in a
> > > choir. I think the former
> > > conveys more of a feeling and a message that "This
> > > is not me" than the
> > > latter. Since I have never had sufficient talent to
> > > do either, my intuition
> > > may be wrong on this.
> > >
> > > 3. In the twenty years I have been teaching free
> > > speech issues, I have
> > > never felt the need to use examples of racial or
> > > religious epithets in
> > > class, or to display pornographic images, or to
> > > recite George Carlin's
> > > dirty words. (I do say "Fuck the Draft" when we talk
> > > about Cohen v.
> > > California.) I don't think this has made my classes
> > > less effective. I have
> > > never spoken with a student who seemed to have any
> > > doubts about what the
> > > class was referring to -- without having the words
> > > or pictures explicitly
> > > expressed.
> > >
> > > In speaking with students about other classes and
> > > out of class
> > > presentations, my sense is that such language and
> > > images will cause some
> > > students significant discomfort. It will distract
> > > others and silence some
> > > students. Different students have very different
> > > attitudes about racial
> > > epithets and pornography. Other professors follow
> > > different pedagogical
> > > protocols, based on a different evaluation of the
> > > costs and benefits of
> > > including specific terms and pictures.
> > >
> > > When we deal with certain subjects, I switch from
> > > calling on students to
> > > asking for volunteers. That seems to work reasonably
> > > well too.
> > >
> > > Alan Brownstein
> > > UC Davis
> > >
> > >
> > > At 09:44 PM 2/8/2004 -0600, you wrote:
> > > >Richard Dougherty asks:
> > > >
> > > >
> > > >Sandy:
> > > >Why your hesitancy in speaking of the Messiah? How
> > > would you distinguish
> > > >that from requiring Inherit the Wind?
> > > >Richard Dougherty
> > > >
> > > >
> > > >The Messiah evokes in me memories of my elementary
> > > school classes going
> > > >over to the First Methodist Church every Christmas
> > > season to sing
> > > >Christmas carols and my discomfort at singing
> > > "Christ the Lord" (in O Come
> > > >All Ye Faithful) or "Jesus our Savior" (in I Wonder
> > > as I Wonder), both
> > > >beautiful songs that I was more than happy to sing
> > > except for the quoted
> > > >language (at which I was simply silent). I presume
> > > that I couldn't do
> > > >that as a member of a college choir! I suppose,
> > > when all is said and
> > > >done, I would view my participation as indeed the
> > > equivalent of acting,
> > > >where the lines one reads are merely external, as
> > > it were, having nothing
> > > >to do with one's internal state of mine.
> > > >
> > > >If The Messiah is all right, at the end of the day,
> > > I should note that I
> > > >would have much more trouble with Bach's St. John's
> > > Passion, which I
> > > >regard as an anti-Jewish (and not simply
> > > pro-Christian, as with the
> > > >Messiah) work. I would have far more trouble
> > > distancing myself from some
> > > >of the lines, and I am also concerned that in its
> > > own way it helps to keep
> > > >alive the notion that Jews as collectively guilty
> > > of deicide.
> > > >
> > > >Thie might be an appropriate occasion to ask for
> > > help from the list,
> > > >either onlist or off, with regard to the following:
> > > I have been honored
> > > >by an invitation from UCLA to deliver the Melville
> > > Nimmer lecture this
> > > >coming fall. I have chosen "The Pedagogy of the
> > > First Amendment" as my
> > > >topic, by which I mean to refer to the problems
> > > that arise in the very
> > > >teaching of certain First Amendment topics--e.g.,
> > > pornography, hate
> > > >speech, offensive speech--without bringing
> > > them--e.g., pornography, hate
> > > >speech, offensive speech--into the classroom itself
> > > (otherwise how would
> > > >one know what one is referring to when one condemns
> > > a completely abstract
> > > >notion called "hate" or "offensive" speech?). One
> > > of the reasons I
> > > >stopped teaching a course on the "First Amendment"
> > > is that I couldn't
> > > >figure out how to teach *about* pornography, hate
> > > speech, or offensive
> > > >speech, without bringing them into the class, as it
> > > were.
> > > >
> > > >I would be extremely grateful to any reflections
> > > (or anecdotes) any of you
> > > >might be willing to share about how you handle such
> > > subjects. I take it,
> > > >for example, that none of us is hesitant to offer
> > > examples of "seditious"
> > > >speech, including speech calling for the violent
> > > overthrow of the American
> > > >government. Presumably we're speaking in a
> > > third-person voice, and it
> > > >would be unacceptable for a student to say, "I'm
> > > offended by the very
> > > >presentationn of words indicating a desire to
> > > overthrow the government and
> > > >kill its leaders." But for many contemporary
> > > professors, I suspect, we
> > > >accept such protests if they involve pornography,
> > > religious or ethnic hate
> > > >speech, or the use of certain offensive words. The
> > > connection between
> > > >paragraph two and three is that I would be quite
> > > willing to offer the St.
> > > >John's Passion as an example of "offensive" speech
> > > in my class, including
> > > >repeating the anti-Jewish passages and, indeed, a
> > > host of similar passages
> > > >from what are regarded as "great" works in the
> > > canon of Western literature
> > > >and music. If I am unwilling to sing the St.
> > > John's Passion, or would
> > > >even be upset if it were on the college choir's
> > > program, should I be
> > > >hesitant to assign it as part of my course?
> > > >
> > > >sandy
> > > >
> > > >_______________________________________________
> > > >To post, send message to [EMAIL PROTECTED]
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> > > password, see
> > >
> > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > > > _______________________________________________
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> > > password, see
> > >
> >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > >
> >
> >
> >=====
> >Rick Duncan
> >Welpton Professor of Law
> >University of Nebraska College of Law
> >Lincoln, NE 68583-0902
> >
> >"When the Round Table is broken every man must follow Galahad or Mordred;
> >middle things are gone." C.S.Lewis
> >
> >__________________________________
> >Do you Yahoo!?
> >Yahoo! Finance: Get your refund fast by filing online.
> >http://taxes.yahoo.com/filing.html
> >_______________________________________________
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> >
> >_______________________________________________
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>
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX 78705
> 512-232-1341 (voice)
> 512-471-6988 (fax)
> [EMAIL PROTECTED]
>
> _______________________________________________
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