The story is true, I believe. I heard it first from Nimmer himself,
when he was my colleague at UCLA, a thousand years ago. It is
repeated, I believe, in The Brethen.
--Larry Sager
At 02:22 PM 2/9/2004, you wrote:
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
>
Harry Kalven, one of the leading First Amendment scholars of the
> 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]]On
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 differe
