Well, shit. There was supposed to be swearing. They swore like sailors when this case was argued in the 2nd Circuit. (Watch here.) Judges and lawyers both! Those same judges swore themselves silly in the appellate opinion. Advocates swore (a lot) in the merits briefs. Promises were made. But today, in a case about how and when the FCC can regulate so-called "fleeting utterances" of words like fuck and shit, the saltiest language comes when Solicitor General Gregory Garre, arguing for the FCC, warns that the agency had an obligation to guard against the possibility of "Big Bird dropping the F-bomb on Sesame Street."
The F-bomb? What, are we all of us in the Dora the Explorer demographic now?
There's a famous story about oral argument in Cohen v. California, the landmark 1971 case about the right to wear a jacket bearing the words "Fuck the Draft" in a Los Angeles courthouse. Listen here. Calling on Mel Nimmer, who represented Cohen, then-Chief Justice Warren Burger cautioned the lawyer: "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." Nimmer waited a whole two minutes and 11 seconds before saying "fuck." But today? The F-bomb.
FCC v. Fox Television is not a First Amendment case. It's a First Amendment-minus case, in that while the various justices insist that it need not be decided on constitutional grounds, it nevertheless provokes one of the best First Amendment debates I have ever heard. Since the Supreme Court decided FCC v. Pacifica in 1978, which found the midday radio broadcast of George Carlin's "Filthy Words" monologue to be indecent, the FCC rule has been this: The agency may regulate a daytime broadcast of the sort of "verbal shock treatment" of the Carlin monologue, but it will overlook the "isolated use" of one-off potty words. A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word "describe or depict sexual or excretory organs or activities" and be "patently offensive as measured by contemporary community standards."
Enter Bono, who accepted his 2003 Golden Globe with the heartfelt (live) declaration that the honor was "really, really fucking brilliant." Oh. And Cher, who received her 2002 Billboard music award with the gracious, "I've also had critics for the last 40 years saying that I was on my way out every year. So fuck 'em." And the ever delightful Nicole Richie, who wowed them at the Billboard awards the following year with the observation that "it's not so fucking simple" to remove "cow shit out of a Prada purse."
Kinda makes you long for George Carlin, doesn't it?
The FCC would have ordinarily ignored these fleeting expletives, but it announced in 2004 that "given the core meaning of the F-word, any use of that word or a variation, in any context, inherently has a sexual connotation" and thus constitutes indecency. Then the FCC went around tagging everyone and their uncle for various fleeting expletives, from NYPD Blue (for "bullshit" and "dickhead") to the CBS Early Show (for "bullshitter"). Fox and its friends appealed, arguing, among other things, that the FCC's sudden rule change violated the federal Administrative Procedure Act, which bars "arbitrary and capricious" agency policy changes or those made without a "reasonable basis." The federal appeals court didn't want to discuss the First Amendment issues when it squashed the FCC like a bug, but it did so anyhow. The Supreme Court does the same today, leading Justice Ruth Bader Ginsburg, at one point, to observe that the whole case has an "air of futility" because, if the court just decides the narrow administrative issue, the First Amendment problem is still "the elephant in the room."
Garre, arguing for the FCC, defends the policy change because the FCC "concretely explained it" and it was "consistent with its mandate." Justice Ginsburg can't understand why an expletive-rich broadcast of Saving Private Ryan was spared the FCC's wrath while a program about the history of jazz was tagged for indecency. "There's very little rhyme or reason which one of these words is OK and which isn't," she tuts.
Garre points out that 28 percent of the viewing audience for the offending Nicole Richie broadcast were children under age 18. He says her swearing "was shockingly gratuitous and graphic." He adds that the "F-word is one of the most graphic, explicit, and vulgar words in the English language." Justice John Paul Stevens asks if that's still the case when the word is used "with no reference whatsoever to sexual function." Garre says yes because it "inevitably conjures up a coarse sexual image."
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