More Bad Business from Supreme Court on FCC & 1st Amendment
Another grim, outrageous, but not really surprising ruling on the First Amendment from the US Supreme Court today, which held 5-4 that fleeting or single-word expletives on broadcast television and radio shows could be fined millions of dollars.
A lower U.S. Appeals Court in New York had found the FCC fines "arbitrary and capricious," by Justice Scalia, writing for the Supreme Court majority, reasoned that "the F-word's power to insult and offend derives from its sexual meaning."
So? Whatever the psychological wellsprings of its semantic power, what counts is whether any Federal agency has the right to fine any broadcaster or anyone, any amount of money, for saying the word "fuck" one or a dozen times, sotto voce or with trumpets blaring, given that the First Amendment to our Constitution says "Congress shall make no law ... abridging the freedom of speech". The linguist Scalia and his four similarly minded colleagues on the bench not only are showing utter contempt for the First Amendment, but are violating their own sacred conservative principle of not "legislating from the bench" with this dangerous ruling.
But it was not unexpected, and indeed has roots in unfortunate Supreme Court rulings throughout the 20th century, including the George Carlin "seven dirty words" case in the late 1970s, in which the Supreme Court upheld the FCC's censure of WBAI Radio for broadcasting Carlin's hilarious routine. Ironically, Justice John Paul Stevens wrote the majority opinion for that benighted ruling. Today, Stevens was in the minority, objecting that the fines for sexual and excretory expressions in broadcasts make no sense given that television is filled with ads about "battling erectile dysfunction" and helping people who "are having trouble going to the bathroom."
Like Justice Oliver Wendell Holmes, Jr., who soon came to regret the use of his "clear and present" danger restriction on the First Amendment to further suppress speech and press, Stevens may now see the error in his support of the FCC attack on WBAI Radio in the 1970s.
But the danger to our freedoms won't go away, whatever the majority and minority views on any Supreme Court, until some Supreme Court rules the FCC itself in obvious violation of the First Amendment. A government agency that keeps track of broadcasting bandwidths to make sure they don't interfere with one another, technically, by being too close on the radio wave spectrum is fine, though decreasingly needed given the unlimited bandwidth of Internet radio. But a government agency that seeks to dictate to us whether we can hear the words "fuck" and "shit" - you'll forgive me if I don't use the "F-word" and "S-word" appellations, since everyone knows just what they mean, anyway - but a government agency that seeks to restrict and punish expression of any of that is a gross violation of our Constitution.
Until we as a society recognize and act upon that very obvious and crucial fact, we can expect more bad business and conduct from the FCC and the U.S. Supreme Court.
My 2005 Keynote Address on "The Flouting of the First Amendment" follows, for some historical context...
transcript...
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Comments
Without spending an hour digging it out, I recall a case I researched for my MA--it may have been Paris Adult Theater vs Slaton-- in which the "compelling state interest" test was used the "unwitting exposure" of adult/obscene materials to minors or non-consenting adults. "Unwitting exposure" was suggested by the author of the opinion as having many of the same elements of an assault.
There are times when I am a rolling "f-bomb" factory. But I find that I just don't want to be exposed to it when I'm watching network TV or listening to the radio. I'm not even a fan of the incessant "fricks", etc. that I hear bandied about repeatedly on re-runs of "Scrubs". Although I wish TV wouldn't re-edit "cluster-fuck" to "cluster-flub" on re-runs of Clint Eastwood's "Heartbreak Ridge".
I am an intense proponent of the 1st amendment in all its permutations. I have a hard time censoring any speech at all. However, I can justify some of it when it comes to the "public airwaves"--although I'm not sure how far "some" extends. I think what it means is that I and only I should be the arbiter and czar of what constitutes a permissable from non-permissable utterance on the airwaves--that's fair, isn't it?
An excellent, thought-provoking post.
Rated
I like you, I consider myself to be a strong, if not strident, First Amendment defender. I must, also admit that Walter has made some highly cognizant points regarding the use of public airwaves.
Which leads me to my question: Help me out here, because I really don't know the answer. Was the rock group, Van Halen's album entitled "For Unlawful Carnal Knowledge," banned from the airwaves, simply for creatively "Fleshing out" (pardon the pun) the forbidden acronym, as it's the title?
--Rated-- for thought provoking content and writing style
I'd be interested to know your thoughts on the reasoning behind the decision and whether you think or believe this is rooted in or based on the complete blurring of what once was clearly intended to be a separation of church and state? Rated.
Seriously, isn't it now time, at last, to start a lawsuit defending the rights of adult Americans to not be infantalized, as a class? I'll compromise, I'll take and adult after-hours ruling on broadcast media (and NO restrictions on contracted cable, thanks very much, my money, my rules) because I don't want young kids being battered with brutal language (which does NOT include a slip of "fuck" once in a while, but can include blue-streak and bloody minded descriptives).
But Christ in a hole-y Bucket, are we a nation of wussy wienies or what? O my stars-n-garters, Justice Scalia, someone just made me momentarily comprehend a turgid penis and a damp vagina engaged in what they are there for, pleaseoplease, BANKRUPT them forthwith!
thanks for this, and well laid out, as always.
There are no "bad" words and people who say different are brainwashed idiots. Fuck SCOTUS. monkey fingered.
I find it appalling that speech restrictions based on Christian "values" are elevated to the level of restrictions based on public safety, yet the values of other religions -- or the absence of religious belief -- do not receive similar protection. And I am dismayed that our Supreme Court justices -- supposedly the finest legal minds in the country -- cannot see that.
It seems to me that there are fines handed out for saying "fuck" (based on Christian notions of sexual shame and conduct), but no fines handed out depictions of Mohammed or women with uncovered heads. By favoring Christian values unequally with Muslim values, it seems to me that the FCC and the Supreme Court decision, itself, violates the establishment clause of the First Amendment.
I tell all my clients that "the law is whatever a judge says it is, until another judge says it isn't," and, of course, the same holds true here. Only problem is that there ain't no higher judges to say it isn't.
Sometimes I hang my head in shame over the level of legal thought in this country. It takes a special kind of blind stupidity to reason that such fines are not "arbitrary and capricious." Sometimes smart ideologues -- like Scalia -- are very talented at reasoning themselves into absurdity. Such is the case here.
A few points/questions:
(1) I understood that the Supreme Court's decision only addressed whether the FCC's decision to change the "fleeting words" rule was "arbitrary and capricious" under the APA, and that the action was remanded to the district court for a consideration of the constitutionality of that rule under the First Amendment. Of course, one's gut-level opinion on whether the rules-change was "arbitrary and capricious" will doubtlessly influence one's gut-level opinion on whether the rule itself is constitutional. But from a strictly doctrinal standpoint, to what extent, if any, does the "arbitration and capricious" analysis overlap with the constitutional analysis?
(2) How do you respond to the parent of a small (or even teenage) child who cannot consistently monitor her child's television watching behavior but who does not want certain content (whether the word "fuck" or whether something considerably more objectionable, e.g., sexually explicit, violent rape scenes) on the air during the time periods when his or her child is most likely to be watching television? What if such parents make up a majority (but not supermajority) of the polity?
I can think of a couple of possible responses. From a practical standpoint, you might say: this is not 1970, your kids will be exposed to all of that "shit" (so to speak) anyway (via cable television and the Internet). From a principled standpoint, you might say: I may agree with you as a matter of policy, but the constitutional prohibition on abridgement of speech is absolute, and you do not command a super-majority to amend the Constitution.
Are there any other possible responses?
(3) Do you believe that the government should have absolutely no power to censor anything that comes on the television? Do you think that a free-market solution would be superior?
Thank you in advance for sharing your thoughts, to the extent that you have time. I suppose I would be most interested in hearing your thought on topic number 3.
CL78
Right - and that's part of the problem. My point is that the Supreme Court should have used this opportunity to rule on the First Amendment and strike the FCC down. Not only did they make the wrong decision on the fines, they incorrectly separated the fines from the First Amendment issue.
Walter wrote: "It can be argued that there is a compelling state interest to keep such utterances from unwitting and unwilling ears on the airwaves owned by the public."
That argument would be defeated by reminding anyone who hears an offensive term to turn off the radio or television, and proceed not to ever listen to or watch the offending station again. How much damage, after all, can one split-second utterance due to a sensitive psyche?
Barring criminally false advertising - selling a product as a tasty soft drink, which kills you a few hours after you drink it - yes, I favor (and the First Amendment requires) no government censorship of television, period. Or, as John Milton urged, let truth and falsity fight it out in the marketplace of ideas. Regulation is just as likely to keep out the truth.
Regarding your question about children: as defenders of free speech have been saying for centuries, we can't treat everyone like children, just to make sure that children are not exposed to words which their parents might not want their children exposed to. As a practical matter, and a proud parent, I recommend parents discussing the realities of the world with their children, including language, rather than shielding them from it.
A lot of the information regarding that album is urban legend - where did you hear it was banned?
Otherwise, thanks for the rating and the compliment!