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."
Ginsburg wonders how "contemporary community standards are determined." Garre says the FCC asks its "collective experts: lawmakers, broadcasters, courts, interest groups" and the Church Lady. When Ginsburg points out that Pacifica, the Carlin case, was decided in 1978, before the Internet, Garre replies that the proliferation of smut on cable and the Internet are all the more reason to strictly regulate network TV: So people can turn on their sets and eat dinner, confident that they will "not be bombarded" with Big Bird. Dropping the F-bomb.
Justice Stephen Breyer wants to know how the five-second-delay-bleeping thingy works and why it only works sometimes. Garre explains that Richie's expletives weren't bleeped because "they only had one person working the bleeping machine" that night.
Stevens proves he is our kind of jurist when he asks whether the FCC ever "takes into consideration that the particular remark was really hilarious?"
Carter Phillips, representing Fox, says the FCC's change of policy about fleeting expletives was sneaky. From 1978 to 2004, words were only indecent if they described sexual or excretory organs or activities; that changed in 2004 for no discernible reason. Scalia retorts that the F-word always referred to sexual activities. Adds Chief Justice John Roberts, "The reason these words shock is because of the association." Scalia deadpans, "And that's why we don't use the word jolly-woggle instead of the F-word." Even Justice David Souter argues that if what changed between 1978 and 2004 was that the FCC determined that viewers were deeply offended by fleeting expletives, then the change of policy might not be arbitrary and capricious. Phillips replies that this isn't the only question here. "This was not about regulating the price of oil going through a pipeline," he says. "This is about regulating speech." Neither Scalia nor Roberts will accept his argument that there is some higher standard to be met for administrative regulation just because speech is involved.
Phillips adds that this is a statute with criminal penalties—including potential fines of $325,000. The FCC policy represents an "extraordinary in terrorem regime," he argues, citing amicus briefs describing the writers block faced by TV writers and broadcasters who no longer know which circumstances will set off the FCC's moral whack-a-mole. (Disclosure: I am a trustee of the Jefferson Center for the Protection of Free Expression, which also filed an amicus brief in this case.) What, wonders Phillips, about small TV stations afraid to carry local sports for fear of a student letting loose?
Roberts says awards shows are different. Nicole Richie has many youthful fans because she is a "celebrity" and they "like her music" and "want to hear what she has to say." (Name one Nicole Richie fan, Mr. Chief Justice, I defy you.)
When Phillips says that allowing a handful of objectors to set broadcast policy is a "hecklers' veto," Scalia heckles him right back. "So those of us that don't like it are hecklers, and you can't take our position into account?"
Stevens asks whether Americans today are more tolerant of foul language than they were 30 years ago, and when Phillips agrees they probably are, Scalia says, "Do you think your clients had anything to do with that?" Phillips retorts, exasperated: "Go to a baseball game, Justice Scalia. You hear these words every time you go to a ballgame." Scalia snaps back that this is still "not normal in polite company" and a "coarsening of manners."
It's hard to say how this all shakes out. Three justices say very little. Two clearly favor granting the FCC even more standardless discretion. The rest keep offering peanuts to the elephant in the room. It's a safe bet that the court will try to stick to the narrow administrative question, despite the justices' itch to talk dirty. Mostly, though, it's a bitterly disappointing day for those of us who'd looked forward to hearing some filthy words at the high court. But, having run the whole case through the FCC's highly subjective, context-based smut filter, I did come up with the following list of dirty words from today's arguments: Briefs. Golden globes. First blow. Dung. Pipeline. Jolly-woggle. Perhaps it's true that the Supreme Court can take away our F-bomb. But they cannot touch our dirty, dirty minds.