[Warning: this post may contain language that the U.S. Court of Appeals for the Second Circuit has found to be neither offensive nor indecent.]
The Second Circuit of the U. S. Court of Appeals has ruled that you can swear on broadcast TV as long as you don’t really mean it, and it’s even O.K. if you do mean it, as long as you don’t do it very often.
This ruling stymies the Federal Communications Commission’s attempts to punish indecent language. The Commission fined Fox Broadcasting for Billboard Music Awards shows in 2002 and 2003 in which Cher said of her detractors, “fuck ’em,” and Nicole Richie said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
In response to these fines for the offhand use of indecent language, Fox Broadcasting, NBC, and several other plaintiffs sued, and Fox v. FCC was decided June 4, 2007, one day before another federal court sentenced I. Lewis Libby to hard time. The Appeals Court found the FCC’s actions “arbitrary and capricious” and instructed the Commission to revisit its new policy of assessing fines for indecent language.
According to federal law, “Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined … or imprisoned not more than two years, or both” (18 U.S.C. § 1464). For many years the FCC only went after comedians and other major offenders against public decency.
In 1975 the Commission found the Pacifica Foundation guilty of indecency for airing George Carlin’s “Seven Dirty Words” monologue and threatened to suspend its broadcast license. The Supreme Court narrowly upheld the FCC’s ruling because it found Carlin’s monologue blatant and shocking, and because it was aired at 2:00 in the afternoon, when children could hear it. As a result of the ban, “Seven Dirty Words” became a cult classic.
In labeling Carlin’s monologue indecent, the Supreme Court found the fact that it was comic rather than obscene to be irrelevant, since even as comedy it was patently indecent. Using a colorful metaphor, the five-judge majority concluded: “We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene” (FCC v. Pacifica Foundation et al, 438 U.S. 726, 1978).
LA Times front page report of the Supreme Court decision in FCC v. Pacifica Foundation
But in 2006 the Commission started going after broadcasters for minor offenses too. It began fining stations for the use of what it calls “fleeting expletives,” obscenity and profanity that is occasional rather than frequent, and that does not refer literally to sexual or excretory organs or functions, but is used instead for emphasis or effect.
In telling the FCC to rethink its policy on fleeting expletives, the Court observed, “These words … as the general public well knows, are often used in everyday conversation without any ‘sexual or excretory’ meaning.” The Court agreed with plaintiff NBC that “in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced ‘sexual or excretory organs or activities.’ ”
In its Pacifica opinion the Supreme Court avoided directly mentioning George Carlin’s dirty words, but in Fox the Appeals Court boldly cited two examples of “fleeting expletives” in high places: “President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to ‘get Syria to get Hezbollah to stop doing this shit’ and Vice President Cheney’s widely-reported ‘Fuck yourself’ comment to Senator Patrick Leahy on the floor of the U.S. Senate.”
The Supreme Court emphasized the narrow scope of its Pacifica ruling: it applied only to the Carlin. The Second Circuit has also construed the Fox decision as narrow, but with the caveat that it was very unlikely that the FCC could come up with a reformulated plan to pursue “fleeting expletives” that would pass a Constitutionality test.
The FCC may take this case to the Supreme Court, but for now the Circuit Court has concluded that fleeting expletives are not indecent and stations can’t be fined for airing them. The Times of London, under the same ownership as Fox, greeted the Circuit Court decision with this scare headline: “US braces for flood of celebrity F-words.”
This decision has one ironic consequence. The Court may not have intended this, but its ruling, carried to an extreme, suggests that literal language may be subject to sanction, while figurative language is not. If you say the f-word on TV in reference to sexual intercourse, be prepared to put a nickel in the coffee can (or to spend up to two years in jail, where you may have Lewis Libby as a cell mate). But if you say “fuck” just for the hell of it, you’ve got nothing to worry about.
What the Court is trying to do – quite rightly – is protect swearing when it’s occasional, spontaneous, and emphatic, by saying it’s not indecent, while reserving judgment on the more significant issue of whether and how to regulate speech that is clearly and deliberately obscene.
But in saying that you can use whatever dirty words you want if you’re not using them literally, the Court sends a message that saying what you mean – sometimes called telling the truth – may subject you to punishment, while saying what you don’t really mean – another definition for lying – lets you off the hook. That precedent came too late for Scooter Libby, but it seems strange to grant protection for speech that’s indirect while criminalizing speech that’s direct and to the point. And I mean that.