The FCC, the Supreme Court, and the F- and S-Words
Posted on November 4, 2008 at 8:00 am
As we go to the polls today, honoring our Constitution’s fundamental principles of representative democracy, another key element of Constitutional system of checks and balances is also at work. And it may include consideration of yet another key founding principle of the United States, the right of freedom of speech and the press under the First Amendment of the Bill of Rights.
Today the Supreme Court will hear arguments in the case of Federal Communications Commission v. Fox Television Stations. The FCC, an independent agency of the federal government, will argue that it has the authority to ban “fleeting” expletives after the FCC issued warnings to broadcasters after celebrities used certain terms in live broadcasts.
The case is not strictly speaking a First Amendment case. As legal challenges often do, it relates more specifically to the procedures followed by the FCC in determining their policy on the words at issue. And as always happens with high-profile Supreme Court cases, there have been many filings by “amici” (“friends of the court”) — advocacy groups, television producers, even the pediatrician’s trade association — all expressing their views about who should decide what is appropriate, when they should decide it, and how the decision should be implemented. A group of former FCC Commissioners and staff wrote that while they were “not without sympathy” for the the FCC’s views on obscenity, they were concerned about:
decisions that have transformed a hitherto moderate policy of policing only the most extreme cases of indecent broadcast programming into a campaign of regulatory surveillance that will chill the production of all but the blandest of broadcast programming.
The words at issue raise an interesting problem in the arguments before the Court, where lawsuits are always argued with decorum and formality. According to the Supreme Court blog SCOTUS:
Unless Chief Justice John G. Roberts, Jr., intervenes, some of the argument in the Supreme Court chamber next Tuesday morning may sound at times like a typical conversation in a seventh grade boys’ restroom — the uninhibited use of four-letter words.
And, if Roberts allows it, such a display of blue language will be heard on TV and radio — in the middle part of the day — across America, and may be read the next morning in many newspapers. But, apparently, not in every news outlet.
The Court may very well rule that the FCC may not interfere with the “fleeting” use of these words on the air. And they may do so without using the words themselves, as they did in the famous case where they upheld the use of the f-word in a political protest. They noted that the word could be considered indispensable to make exactly the objection that the protester wanted to without saying what the word was.
According to the book, The Brethren, Burger approached Justice John M. Harlan, the opinion’s author, and said: “John, you’re not going to use ‘that word’ in delivering the opinion are you? It would be the end of the Court if you use it, John.” And Harlan did not. It was included, though, in the Court’s opinion finding that Cohen’s First Amendment rights had been violated. Justice Harlan described Cohen’s message as one involving a “scurrilous epithet,” but he also wrote: “While the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.”
What should the policy be about the language used on broadcast television? There are no restrictions on the language used on cable programs. The last time the Court ruled on this issue it made a distinction based on the unique availability of broadcast television and radio for children. But in a world of internet, podcasts, and DVDs (not to mention schoolyards, shopping malls, and newspaper articles), that distinction no longer applies. I look forward to reports on the arguments and to the Court’s decision.
We often grant offensive words more power than they are due. Calling one of the Seven Dirty Words (blessings on George Carlin)”the F-Bomb” makes it seem more mysterious and we all secretly nod, silently saying the word to ourselves. Mere obsenity is a sign of laziness and witlessness. I ally myself with Twain on this. He believed that creative cursing was the sign of an active and thoughful person.
When we were young (even to early adulthood) and said one of the offensive words my mom would stop us and require us to read aloud the meaning and history of the word, its proper use, and then explain how what we said was absurd and foolish. Being a slow learner, I have read and re-read many of these. And I now keep an etymological dictionary next to my thesaurus and dictionary. As an adult I have been known to challenge youth group members and others to explain exactly what they said. It has been effective. I have heard much more creative cursing and shared great, even uproarious moments with kids as they struggle to vent their anger in wildly creative, but linguisticly authentic ways.
Should the FCC be allowed to bleep these words? I am siding, with hesitation, on the no-bleep faction. Even in the silence or bleep, we all know and say the word to ourselves. So rather than infuse the lazy vocabulary with greater power, I would hope to dilute it with familiarity. However, I will continue my campaign for sensible speaking and witty & provocative cursing in place of mindless obsenity.
Here is where it is handy to have a movie reviewer who is also a lawyer and a mom! You are better qualified to balance the competing considerations than anyone currently on the Supreme Court.
PS– whatever happened to Fox’s conservative family values?
I think it would be enlightening for your youth and many adults to discover that not all “offensive” language is swearing. We recognize differences among profanity, Obscenity, swearing and cursing. If ranking the more offensive, which would be the worst (or the winner)?
Certainly cursing as in “god damn you” is worse than the obscenity
“M—— f—–! in my opinion. But why would I feel more free to write out the entire first phrase but not the second?
In the movie “All the Presidents’ Men” the reporters were using much crass language, which may have been included just for the sensationalism — but those who think that using that language is acceptable in real life are being less than banal just downright base– not gentlemen/women (who seem to be fading from the culture).
There are worthwhile shows to see and hear. Thanks to Nell for being concerned about our cultural values.
Thanks to all three of your for your comments. Dahlia Lithwick has an excellent article in Slate about yesterday’s oral argument.
A 2001 clarification of the FCC policy provided that a finding of indecency requires that the naughty word “describe or depict sexual or excretory organs or activities” and be “patently offensive as measured by contemporary community standards….” [And the FCC] announced in 2004 that “given the core meaning of the F-word, any use of that word or a variation, in any context, inherently has a sexual connotation” and thus constitutes indecency.
One of the most bizarre elements of the MPAA’s rating system is that the F-word can be used once or twice in a PG-13 film as long as it does not refer to sex (which the FCC apparently does not consider possible). You’d need a degree in semiotics to figure out the reasoning behind that one. There are far more offensive words, including ethnic and homophobic terms, that are ignored by both the MPAA and the FCC.
Sometimes, as in “Soul Men,” which I am reviewing this week, bad language is used for the reason your mother always said — no imagination. But sometimes, as written by Richard Pryor or Quentin Tarantino, it can be poetry.
Speaking of which, I was delighted to hear yesterday that there is an upcoming film about the obscenity trial over Allen Ginsberg’s poem “Howl,” with James Franco as Ginsberg. It looks terrific.
O come on! I don’t like the word, it is offensive, distasteful and meaningless BUT here in my neighborhood I can hear it a dozen times in one block on any given Saturday afternoon. Our young people, you know the one’s we are supposed to be sheltering, already know the word and use the world with amazing frequency. Do I like hearing it? No, but most of the time I just ignore it. If the Family Values folks at the FCC want to protect our children then maybe they should cut down on the number of graphic murders & mayhem on network TV. Yea right, like that’s gonna happen when pigs fly!