Back in 2004, prompted by Bono's exclamation at the 60th Golden Globe Awards that his band's victory in Best Original Song for "The Hands That Built America" from Gangs of New York was "really, really, f***ing brilliant," the Federal Communications Commission looked into complaints as to whether to sanction NBC for indecency for this fleeting, unscripted, live expletive. In that case, they did not. While ruling that “Bono did not describe, in context, sexual or excretory organs or activities and . . . the utterance was fleeting and isolated,” it was still “patently offensive” because the term “is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” “[i]ts use invariably invokes a coarse sexual image,” and because Bono’s use of the word was entirely “shocking and gratuitous.” However, since the FCC hadn't yet penalized a broadcaster for fleeting expletives before, they wouldn't yet -- but were putting future potential scofflaws on notice.
Enter Nicole Richie and Cher -- Richie at the 2003 Billboard Awards for asking the audience “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple"; Cher at the previous year's awards for noting, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” The FCC sanctioned Fox for both broadcasts, finding Richie's “explicit description of the handling of excrement” to be “vulgar and shocking,” and Cher to be "patently offensive" "because she metaphorically suggested a sexual act as a means of expressing hostility to her critics."
The Second Circuit said that the FCC overstepped its bounds by expanding its policy to include fleeting expletives. Today, in a 5-4 opinion authored by Justice Scalia, the Supreme Court reversed, holding that this expansion of FCC policy was not arbitrary or capricious, but rather a rational way to regulate modern tv:
It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latterindecent. As the Commission said with regard to expletive use of the F-Word, “the word’s power to insult and offendderives from its sexual meaning.” And the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica. Even isolated utterances can be made in “pander[ing,] . . . vulgar and shocking” manners, and can constitute harmful “‘first blow[s]’” to children. 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.”
Did this rational basis need to be verified by research? Justice Scalia argues no:
There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them. One cannot demand a multiyear controlled study, in which some children are intentionally exposed to indecent broadcasts (and insulated from all other indecency), and others are shielded from all indecency. It is one thing to set aside agency action under the Administrative Procedure Act because of failure to adduce empirical data that can readily be obtained. It is something else to insist upon obtaining the unobtainable. Here it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate. Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission. If enforcement had to be supported by empirical data, the ban would effectively be a nullity.
Citing, as well, "the fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s stepped-up enforcement policy," Scalia concludes by side-stepping (for now) the constitutional issue which was not fully presented below:
It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is unconstitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excretory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.
Justice Thomas, in a fascinating six-page concurrence, suggests that the pervasiveness of the Internet, plus cable and satellite tv (and V-chips and other technologies available for same) means that maybe there's no longer a constitutional basis for the FCC to regulate anything anymore.
Justice Kennedy's concurrence affirms that the FCC justified its policy change sufficiently, but explictly withholds judgment as to whether its application was constitutional here.
Justice Breyer authors the main dissent, focusing on whether the FCC fully considered and justified this change in policy, such as these concerns:
The FCC failed to consider the potential impact of its new policy upon local broadcasting coverage. This “aspect of the problem” is particularly important because the FCC explicitly took account of potential broadcasting impact. (“The ease with which broadcasters today can block even fleeting words in a live broadcast is an element in our decision”). Indeed, in setting forth “bleeping” technology changes (presumably lowering bleeping costs) as justifying the policy change, it implicitly reasoned that lower costs, making it easier for broadcasters to install bleeping equipment, made it less likely that the new policy would lead broadcasters to reduce coverage, say by canceling coverage of public events. (“[T]echnological advances have made it possible ... to prevent the broadcast of a single offending word or action without blocking or disproportionately disrupting the message of the speaker or performer”).
What then did the FCC say about the likelihood that smaller independent broadcasters, including many public service broadcasters, still would not be able to afford “bleeping” technology and, as a consequence, would reduce local coverage, indeed cancel coverage, of many public events? It said nothing at all.
After documenting local affiliate concerns with fines and the costs of bleeping technology, Justice Breyer asks:
What did the FCC say in response to this claim? What did it say about the likely impact of the new policy on the coverage that its new policy is most likely to affect, coverage of local live events—city council meetings, local sports events, community arts productions, and the like? It said nothing at all.
To which Justice Scalia responds:
We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, 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. Their main exposure with regard to self-originated programming is live coverage of news and public affairs. But the Remand Order went out of its way to note that the case at hand did not involve “breaking news coverage,” and that “it may be inequitable to hold a licensee responsible for airing offensive speech during live coverage of a public event."
Justice Ginsburg's solo dissent focuses on the First Amendment issues:
I write separately only to note that there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today’s decision does nothing to diminish that shadow.
More than 30 years ago, a sharply divided Court allowed the FCC to sanction a mid-afternoon radio broadcast of comedian George Carlin’s 12-minute “Filthy Words” monologue. Carlin satirized the “original” seven dirty words and repeated them relentlessly in a variety of colloquialisms. The monologue was aired as part of a program on contemporary attitudes toward the use of language. In this regard, the majority stressed that the Carlin monologue deliberately repeated the dirty words “over and over again.” Justice Powell, concurring, described Carlin’s speech as “verbal shock treatment.”
In contrast, the unscripted fleeting expletives at issue here are neither deliberate nor relentlessly repetitive. Nor does the Commission’s policy home in on expressions used to describe sexual or excretory activities or organs. Spontaneous utterances used simply to convey an emotion or intensify a statement fall within the order’s compass. Cf. Cohen v. California, 403 U. S. 15, 26 (1971) (“[W]ords 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.”)...
The Pacifica decision, however it might fare on reassessment, was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).
Finally, Justice Stevens' dissent focuses on two issues -- the independence of the FCC and whether this language was, indeed, indecent:
There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency. FN4
FN4: It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom.
[As per previous disclaimers, I'm involved in a matter currently pending in the cert pool; as such, any reporting I'm doing on the Court will be descriptive and not analytical. You'll have to draw your own conclusions as to which side ought to have prevailed.]
