This Is Really, Really, Fuckin’ Brilliant!

This Is Really, Really, Fuckin’ Brilliant!

This Is Really, Really, Fuckin’ Brilliant!

Slate's blog on legal issues.
March 17 2008 11:36 AM

This Is Really, Really, Fuckin’ Brilliant!

Yes, we can hope that will be readers’ reactions to this great new Slate meta-law-blog. But I’m referring, instead, to Bono’s expletive when he accepted the Golden Globe for best original song five years ago.   (Trivia question:   What was the song?   A.   "The Hands That Built America" from Gangs of New York . OK, so it wasn't so brilliant, after all.)

The Golden Globes are, of course, televised (at least in years when the writers are not on strike).   NBC broadcast the 2003 award ceremony that contained Bono’s eloquent acceptance speech. And thereby . . . committed a federal felony.  


Or so said the Bush administration’s Federal Communications Commission, anyway, which concluded that Bono’s singular remark caused NBC to violate 18 U.S.C. 1464, which makes it unlawful to "utter[] any obscene, indecent, or profane language by means of radio communication."


The FCC explained that, even when it is used as an "intensifier," the term it delicately calls "the F-word" was indecent because it "inherently has a sexual connotation," because it "invariably invokes a coarse sexual image," and because its recitation by Bono lacked any political, scientific or "other independent" value.

The FCC then applied its new "Bono Rule" to . . . Cher and Nicole Richie (good company, Bono!), and to the Fox Network that had broadcast their similar outbursts.   (During her acceptance speech for an "Artist Achievement Award" in the 2002 Billboard Music Awards, Cher said:   "I’ve . . . had critics for the last 40 years saying that I was on my way out every year.   Right.   So fuck 'em.   I still have a job and they don’t."   And during the next year’s Billboard Awards, Paris Hilton and Nicole Richie made sport of the Bono/Cher precedents, proving that the new law is not limited to performers with a single name:

Paris:   Now Nicole, remember, this is a live show, watch the bad language.

Nicole: Why do they even call it The Simple Life ?   Have you ever tried to get cow shit out of a Prada purse?   It’s not so fucking simple.")

The FCC held that Fox had violated the law, too, under its new single-expletive doctrine which is, more or less, that any use of "fuck" or "shit" on network TV before 10 p.m., even of the "adjectival" or "intensifier" variety, is presumptively indecent.   ("Presumptively" because their remains a "Saving Private Ryan" exception for the use of "fuck" in big movies by important directors about the ravages of war.   The law does not apply between 10 p.m. and 6 a.m., or at any time on cable or on the Net.)  

Fox appealed.   The U.S. Court of Appeals for the Second Circuit held that the new FCC rule violated the Administrative Procedure Act.   It’s obvious from its opinion, however, that the court’s decision was really being driven by the First Amendment.

The FCC petitioned for certiorari , and today the Supreme Court granted the government’s petition.

I would be shocked if the court does not affirm the court of appeals’ invalidation of the FCC rule.   Does anyone disagree? Anyone see more than two votes for the FCC?   Moreover, isn’t this whole thing just a bit otherworldly that more than 30 years after the George Carlin "seven dirty words" decision, a federal agency would issue such a ruling and the highest court in the land would have to consider such a question? 

Marty Lederman teaches constitutional law at the Georgetown University Law Center. He was deputy assistant attorney general in the Department of Justice's Office of Legal Counsel 2009-10 and an attorney advisor in OLC 1994-2002. He has been a regular contributor to several legal blogs, including Just Security, Balkinization, and SCOTUSblog.