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  • Fox v. FCC: Supreme Court damns fleeting expletives on TV

    If you’re in front of a microphone and you feel a fleeting expletive coming on, the Supreme Court says stifle it. In a 5 - 4 decision in FCC v. Fox Television, the Supreme Court ruled that Federal Communication Commission procedures banning dirty words on radio and TV were perfectly appropriate.

    Federal law states, “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). In 1978 the Supreme Court upheld the FCC’s prohibition of obscenity in the George Carlin “7 Dirty Words” case, barring “language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs, at times of the day when there is a reasonable risk that children may be in the audience.”

    LA Times headline,  

    Avert your ears: In 1978 the Supreme Court ruled that George Carlin’s 7 dirty words were not ready for prime time, or any other time when children might hear them

    But in 2004 the FCC started going after stations not just for repeated obscenity, but also for any single off-hand f-word, for example when Cher said of her critics during a Billboard Music Awards show, “So f*** ‘em,” or when Bono said during the Golden Globes, “This is really, really, f***ing brilliant.” Cable is not covered by the rule, nor are FBI wiretaps, so when Illinois ex-Gov. Blagojevich called his power to sell Pres. Obama’s vacated senate seat “f***ing golden,” his use of an expletive wasn’t illegal, though that proved to be the least of the indicted governor's problems.

    The Fox television network sued to protest the ban on fleeting expletives, but after the Court of Appeals sided with Fox, the FCC appealed to the Supreme Court, which reversed the lower court decision. Now the ultra-conservative Fox Network finds itself on the same side as the Court’s liberal and invariably dissenting minority.

    The majority of the justices agreed with the FCC’s position that expletives—dirty words used in their nonliteral sense—always invoke that literal meaning. Justice Antonin Scalia wrote in his majority opinion, “an ‘expletive’s’ power to offend derives from its sexual or excretory meaning.” Scalia added that permitting one-time uses of such words would be only the beginning: “It is surely rational (if not inescapable) to believe that a safe harbor for single words would likely lead to more widespread use of the offensive language.”

    Although in his angry dissent in the 1978 7 Dirty Words case Justice William Brennan warned that the majority decision could keep Shakespeare and Chaucer off the air, not to mention the Bible and the Watergate Tapes, in his Fox decision this week Justice Scalia insisted that some intentionally-scripted expletives were fine with him, for example, Chaucer’s “Miller’s Tale,” because despite its explicit language, including words the Court banned in 1978, he finds the tale so boring that children wouldn’t notice the salacious parts. Also “Saving Private Ryan,” which Scalia said was so scary and violent that parents wouldn’t let their children watch it in the first place. But the Court was silent on acronyms, so it's not clear whether the FCC could fine broadcasters for the occasional, fleeting WTF.

    Justice Scalia himself is already on record as liking a good dirty word now and then. During oral arguments in the Fox case, Justice Stevens asked if f-words were permissible in comedy as well as in the high seriousness of a Spielberg war movie, and Justice Scalia interjected, “Bawdy jokes are okay if they are really good.”

    Scalia makes an obscene gesture in a photo captured by the Boston Herald

    Avert your eyes: Justice Scalia likes a bawdy joke if it’s really good, as long as it’s not on television (and he seems to be okay with obscenity in newspapers)

    But when it comes to radio and TV, the Court says dirty words need to be bleeped out, and it notes that fortunately there’s now a technology available to do just that. Big networks already have the equipment, and buying expensive bleeping machines won’t be a problem for small-town broadcasters, because according to Justice Scalia, people from small towns swear less than city slickers like Bono or trash-talking Hollywood women like Cher: “Their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.”

    In her dissent, Justice Ruth Bader Ginsberg argues that expletives do not always invoke literal meaning, citing the Supreme Court decision in Cohen v. California (1971), a case in which a 19 year old was arrested in 1968 for wearing a jacket which read, “Fuck the draft.” The Court interpreted that anti-war message as figurative rather than literal: “Words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated.”

    Perhaps the main concern of the Court’s majority in the Fox decision is to protect the sensitive ears of children. Scalia acknowledges that “the harmful effect of broadcast profanity on children” cannot be verified by empirical studies in which one group of children is exposed to fleeting expletives while a control group is shielded from them. But he is certain that if children hear f-words on TV, they’ll repeat them, because “children mimic the behavior they observe. . . . Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives.”

    Justice Stephen Breyer in his dissent cites a study claiming that children under 12 don’t understand the sexual implications of the profanity that they hear. But what all the justices seem to have missed is the fact that children don’t need to hear obscenity on TV to use it. The dirty words of English were being transmitted intact from generation to generation for centuries before the federal government began licensing and regulating broadcasters. Children have always learned taboo words not from the media, but from slightly older children, and banning expletives from the airwaves isn’t going to slow down that transmission of the juicier parts of our language one bit.

    But maybe Justice Scalia realized in the back of his mind that keeping children's vocabularies clean and pure is something neither courts nor parents are very good at, and that the regulation of speech isn't something that the government can effectively dabble in. Because, in addition to supporting the FCC on technical, administrative grounds, his majority opinion also invited a First Amendment challenge to the Commission’s obscenity ban: the “lawfulness [of the FCC’s action] under the Constitution is a separate question to be addressed in a constitutional challenge,” a challenge that could very well come soon if the Fox network doesn’t find the Supreme Court's decision in Fox v. FCC to be fair or balanced.

    UPDATE: 7-13-2010  Today the Second Circuit Court of Appeals tossed out the FCC indecency rule, calling the policy "unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here."

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