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Analysis: First Amendment Jurisprudence By Gut Check

The decision's based on government support of "morality," so of course Scalia wrote it.

Analysis: First Amendment Jurisprudence By Gut Check

WASHINGTON, D.C. – The long-awaited decision in Federal Communications Commission (FCC) v. Fox Broadcasting has arrived ... and it only took until page 3 before Justice Antonin Scalia, author of the majority opinion, dragged in the "morality" issue.

"In FCC v. Pacifica Foundation, supra, we upheld the Commission's order against statutory and constitutional challenge," Scalia recounts. "We rejected the broadcasters' argument that the statutory proscription applied only to speech appealing to the prurient interest, noting that 'the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.'"

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"Morality," of course, is not defined in the law, and one might have thought that a "strict constructionist" like Scalia would understand that – but it's clear that the current opinion was not authored by a "strict constructionist." Rather, its author was the life-long Roman Catholic who once described himself as a "fool for Christ's sake."

Indeed, Scalia spends the first five pages of the decision tracing the evolution of the FCC's power over "indecency" from Pacifica to the instant case, which is based on what has been termed the (Bush era) FCC's 2004 "Golden Globes Order," which came about as a result of singer Bono exclaiming "This is really, really fucking brilliant" after receiving his award in 2002. Although FCC staff had decided that because Bono "did not describe, in context, sexual or excretory organs or activities and ... the utterance was fleeting and isolated," it was therefore not indecent, the full Commission reversed, ruling that "the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent."

The case at issue involves exclamations at the 2002 and 2003 Billboard Music Awards shows, both broadcast by Fox. During the 2002 show, singer Cher told the audience, "I've also had critics for the last 40 years saying that I was on my way out every year. Right. So fuck 'em"; while at the 2003 show, during the presentation of an award by "The Simple Life" stars Nicole Richie and Paris Hilton, Richie said, "Why do they even call it 'The Simple Life?' Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple." The FCC declared both instances indecent, but declined to impose sanctions – and it was this lack of actual monetary loss that seemed to figure heavily into the majority opinion.

Among the problems the FCC found with the two instances were the "entirely gratuitous uses of 'one of the most vulgar, graphic, and explicit words for sexual activity in the English language'"; that Richie's use of "cow shit" and "fucking" were "vulgar and shocking"; and that Cher's statement was "patently offensive" because she "metaphorically suggested a sexual act as a means of expressing hostility to her critics." And of course, because "approximately 2.5 million minors" saw the shows. According to the FCC under Bush appointee Chairman Kevin Martin, the Commission's "strict dichotomy between 'expletives' and 'descriptions or depictions of sexual or excretory functions' is artificial and does not make sense in light of the fact that an ''expletive's' power to offend derives from its sexual or excretory meaning," not to mention that such a distinction would allow broadcasters "to air expletives at all hours of a day so long as they did so one at a time."

However, since the Second Circuit U.S. Court of Appeals decided the case based on the FCC's perceived violation of the Administrative Procedures Act (APA), ruling that the FCC's actions regarding the Billboard Music Awards shows were "arbitrary" and "capricious," and because that court failed to reach the constitutional question of whether the "indecent" words were protected under the First Amendment, the Supreme Court also confined its ruling to whether the APA had been violated – and from the point that Scalia's opinion quoted from the 1974 case of Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc., to the effect that "a court is not to substitute its judgment for that of the agency" and should "uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned," there was little doubt where the court's favor would fall. And where Fox had argued that the FCC decision was tantamount to changing horses in mid-stream without making clear what the criteria for the new rule were, the majority stood on precedent and declined to second-guess the agency.

"And of course the agency must show that there are good reasons for the new policy," Scalia writes. "But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates. This means that the agency need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate." [Emphasis in original]

But while Scalia rejects the idea that the Court could throw out the FCC's Fox finding based on the First Amendment's free speech guarantees, citing the Court's "so-called canon of constitutional avoidance" – meaning that the Court avoids dealing with constitutional issues when a ruling under a lesser standard is possible – not even his closest compatriot on the Court agreed, as will be noted later.

But what is particularly troubling about the decision is the Scalia majority's failure to apply its own precedent under Daubert v. Merrell Dow to the entire question of indecency – not surprising, since the conservatives could hardly fail to understand where that would lead.

"In the majority's view, without 'evidence that suggests a fleeting expletive is harmful [and] ... serious enough to warrant government regulation,' the agency could not regulate more broadly," Scalia writes, referring to the Court of Appeals' holding. "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."

"The Commission had adduced no quantifiable measure of the harm caused by the language in Pacifica, and we nonetheless held that the 'government's interest in the "well-being of its youth" ... justified the regulation of otherwise protected expression'," Scalia continues. "If the Constitution itself demands of agencies no more scientifically certain criteria to comply with the First Amendment, neither does the Administrative Procedure Act to comply with the requirement of reasoned decision-making." [Citations omitted here and below]

Indeed, Congress is not bound by scientific evidence in enacting legislation (much as one might argue that it should be), but the Supreme Court has precedent on that very issue.

"Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested," wrote Justice William Brennan in his opinion in Daubert v. Merrell Dow. "'Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.' ... Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication."

But for Scalia, the fact that no reliable scientific evidence exists supporting the harmfulness to children of hearing vulgarities like "fuck" and "shit" is far less important than his gut telling him that there's something wrong with kids hearing and eventually saying those words. "Out of sight, out of mind" is hardly a legitimate principle upon which to base an entire canon of constitutional law!

What's even more interesting are the contortions through which Scalia goes to distinguish Cher saying "fuck" and "Nicole Richie saying "shit" from those same expletives and more being used in televised showings of Saving Private Ryan.

"More fundamentally, however, the agency's decision to consider the patent offensiveness of isolated expletives on a case-by-case basis is not arbitrary or capricious," Scalia writes. "'Even a prime-time recitation of Geoffrey Chaucer's Miller's Tale,' we have explained [in Pacifica], 'would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected.' The same rationale could support the Commission's finding that a broadcast of the film Saving Private Ryan was not indecent — a finding to which the broadcasters point as supposed evidence of the Commission's inconsistency. The frightening suspense and the graphic violence in the movie could well dissuade the most vulnerable from watching and would put parents on notice of potentially objectionable material."

So even in a society that sells pseudo-violence as assiduously as it sells pseudo-sex, Scalia's gut tells him that kids would be far less likely to watch the eminently watchable Tom Hanks stepping over dead bodies in a war movie than they would watch the then-57-year-old Cher accepting an award for her musical achievements, or Nicole Richie describing one of the inevitable results of living "The Simple Life" on a dairy farm. (But what about, "I have had it with these motherfucking snakes on this motherfucking plane!"?)

"Finally, the Court of Appeals found unconvincing the agency's prediction (without any evidence) that a per se exemption for fleeting expletives would lead to increased use of expletives one at a time," Scalia's gut continues. "But even in the absence of evidence, the agency's predictive judgment (which merits deference) makes entire sense. To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance."

But again, this is chasing a solution without a problem – the idea that there's something inherently wrong with kids using expletives – and the situation is made all the more egregious by Scalia's own dissent in Lawrence v. Texas which bemoaned the "fact" that with Bowers v. Hardwick overturned and sodomy legalized, "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision..." [Emphasis added]

Of course, Scalia would like Lawrence overturned, but this is hardly the decision within which to do that, so shouldn't Scalia be true to his own prediction and assume that restrictions on indecency (a subset of obscenity) should be voided?

Scalia goes on to attempt to refute some of the objections raised by Justices Stephen Breyer and John Paul Stevens in their dissents, but it contains such half-assed reasoning as, "JUSTICE BREYER and JUSTICE STEVENS evidently believe that when an agency has obtained this Court's determination that a less restrictive rule is constitutional, its successors acquire some special burden to explain why a more restrictive rule is not unconstitutional. We know of no such principle." (Stevens does, but more on that later.)

But Scalia's gut was in action yet again in responding to Justice Breyer's contention that local broadcasters, with their more limited budgets and inability to afford the equipment to briefly time-delay live broadcasts, would be at a disadvantage under the new FCC rules in trying to cover local live events.

"We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances," Scalia fantasizes. "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."

Wow! He manages to insult the free speech rights and creativity of both "Hollywood glitteratae" and rural citizens at the same time – good show, Tony!

What follows, however, is more problematic:

"The fundamental fallacy of JUSTICE BREYER's small-broadcaster gloomyscenario [sic] is its demonstrably false assumption that the Remand Order makes no provision for the avoidance of unfairness — that the single­utterance prohibition will be invoked uniformly, in all situations. The Remand Order made very clear that this is not the case. It said that in determining 'what, if any, remedy is appropriate' the Commission would consider the facts of each individual case, such as the 'possibility of human error in using delay equipment.' Thus, the fact that the agency believed that Fox (a large broadcaster that used suggestive scripting and a deficient delay system to air a prime-time awards show aimed at millions of children) 'fail[ed] to exercise "reasonable judgment, responsibility and sensitivity,"' says little about how the Commission would treat smaller broadcasters who cannot afford screening equipment."

What it does say, however, is that under Scalia's doctrine, the FCC will continue to be able to pick and choose which "fleeting indecencies" it will fine (at $325,000 per incident) and which it will not, based on criteria that cannot be fully known by broadcasters beforehand, thereby sustaining the un-American notion that at least as far as FCC indecency rules are concerned, broadcasters live under a "government of men, not of laws." Either an expletive is harmful and must be suppressed in all cases (unless a famous Hollywood actor utters it in the context of a boring, er, deeply significant war movie) or some broadcasters get a pass because they're country bumpkins who can't afford to stop their peers, who "probably employ vulgarity less than big-city folks" anyway, from yelling, "We beat the shit out of them!" on live TV at football games.

It's probably worth noting that although he generally supports the majority opinion, Justice Kennedy specifically refused to sign onto the part of the opinion (III-E) that attempts to respond to the court's dissenters.

The final section of the majority opinion deals briefly with the constitutional questions raised by the lawsuit, and Scalia gives them fairly short shrift – "We decline to address the constitutional questions at this time" – although he admits that, "whether it is unconstitutional[] will be determined soon enough, perhaps in this very case."

But for a guy who depends as much on his gut as Scalia does in determining that kids are harmed by hearing (and eventually saying) expletives, he's unwilling to cut the same gut-slack to the Second Circuit.

"The Second Circuit believed that children today 'likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech,'" Scalia writes, "and that this cuts against more stringent regulation of broadcasts. Assuming the premise is true (for this point the Second Circuit did not demand empirical evidence) the conclusion does not necessarily follow. The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children. In the end, the Second Circuit and the broadcasters quibble with the Commission's policy choices and not with the explanation it has given. We decline to 'substitute [our] judgment for that of the agency,' and we find the Commission's orders neither arbitrary nor capricious."

Of course, Scalia's assumption that the FCC rules "give conscientious parents a relatively safe haven for their children" is belied by the fact that today's kids – the ones old enough to understand the expletives they're using – are hardly using broadcast TV and radio as their primary sources of information or entertainment.

"What's the point of continuing to apply a censorship regime to one of the oldest mediums — broadcast TV and radio — when kids are flocking to unregulated mediums [sic] in large numbers?" Adam Thierer, a senior fellow with the Progress and Freedom Foundation think-tank on the digital revolution, told Reuters News Service.

Moreover, "When it comes to what kids see on television, the highest authority in the land should be parents, not government," opined Jim Dyke, executive director of TV Watch, an anti-censorship group. "Parents have the information to make informed decisions through television ratings and the tools to enforce those decisions, such as the V-chip, cable and satellite controls. It is a right backed by parents' ability to control their children's viewing, whether by using information, technology or old-fashioned rules."

Interestingly, the constitutionality of the FCC's indecency policy also troubled Scalia's closest associate on the Court, Justice Clarence Thomas, who actually isn't a stranger to the liberal side of free speech issues. For instance, he concurred with the majority in Ashcroft v. Free Speech Coalition, which struck down the portions of the Child Pornography Prevention Act which targeted young-looking adults engaging in sexually-explicit conduct.

"I write separately, however, to note the questionable viability of the two precedents that support the FCC's assertion of constitutional authority to regulate the programming at issue in this case," Thomas opined.
He was referring to Red Lion Broadcasting Co. v. FCC, which upheld the "fairness doctrine" requiring broadcasters to make at least some on-air time available for alternative views on publicly-discussed issues, and FCC v. Pacifica Foundation, the George Carlin "Seven Filthy Words" case. It's hardly surprising that Thomas opposes any sort of fairness doctrine, a subject that's currently being much discussed in the right-wing media, which has charged that Democrats want to use it to silence ultraconservative commentators like Rush Limbaugh and Sean Hannity. But what Thomas does here is question whether the FCC should have any censorship capabilities under the Constitution, since such power derives from the claim, first set forth in Red Lion, and later affirmed in Pacifica, of the "scarcity of radio frequencies," which is cited as a justification for FCC control of what content goes out over those frequencies.

"Indeed," writes Thomas, "the logical weakness of Red Lion and Pacifica has been apparent for some time: 'It is certainly true that broadcast frequencies are scarce but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media'," a 1986 quote from (ultraconservative) D.C. Circuit Appeals Court Judge Robert Bork.

Thomas takes his fellow justices to task for failing to apply their "scarcity, therefore control" standard to situations like dial-a-porn (Sable Communications v. FCC), cable TV (Turner Broadcasting v. FCC) and the Internet (Reno v. ACLU, the Communications Decency Act case), charging that, "There is no justification for this apparent dichotomy in First Amendment jurisprudence."

"Moreover, traditional broadcast television and radio are no longer the 'uniquely pervasive' media forms they once were," he argues. "For most consumers, traditional broadcast media programming is now bundled with cable or satellite services. Broadcast and other video programming is also widely available over the Internet. And like radio and television broadcasts, Internet access is now often freely available over the airwaves and can be accessed by portable computer, cell phones, and other wireless devices. The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today."

This certainly seems like an argument for an end to the FCC's regulatory powers over speech altogether – something his ultraconservative radio and TV pals would dearly love to see, since they currently represent over 90% of the talk formats available in America – and after quoting from Planned Parenthood v. Casey and American Trucking Assns. v. Scheiner about how changes in facts can necessitate changes in law, he concludes with, "For all these reasons, I am open to reconsideration of Red Lion and Pacifica in the proper case."

This really isn't the ringing endorsement of free speech that some claim it to be, but with moderating influences from other justices, it could be a good first step.

Justice Anthony Kennedy also writes a split opinion, largely discussing what criteria should be considered regarding an agency's "change of course" such as the Golden Globes Order signifies.

"The question whether a change in policy requires an agency to provide a more-reasoned explanation than when the original policy was first announced is not susceptible, in my view, to an answer that applies in all cases," Kennedy equivocates. "There may be instances when it becomes apparent to an agency that the reasons for a longstanding policy have been altered by discoveries in science, advances in technology, or by any of the other forces at work in a dynamic society. If an agency seeks to respond to new circumstances by modifying its earlier policy, the agency may have a substantial body of data and experience that can shape and inform the new rule. In other cases the altered circumstances may be so new that the agency must make predictive judgments that are as difficult now as when the agency's earlier policy was first announced. Reliance interests in the prior policy may also have weight in the analysis."

In other words, it would appear that Kennedy supports an FCC gut check, but no:

"If agencies were permitted unbridled discretion, their actions might violate important constitutional principles of separation of powers and checks and balances," Kennedy recognizes. "To that end the Constitution requires that Congress' delegation of lawmaking power to an agency must be 'specific and detailed.' Congress must 'clearly delineat[e] the general policy' an agency is to achieve and must specify the 'boundaries of [the] delegated authority.' Congress must '"lay down by legislative act an intelligible principle,"' and the agency must follow it."

In this case, however, it shouldn't matter whether Congress is "specific and detailed" as to what policies the FCC must follow; Congress has no more power to abrogate the First Amendment's free speech clause than does the FCC, especially with a complete lack of scientific evidence to back it up.

But that's okay; even though Kennedy alludes to the (indisputable) fact that the FCC changed its policy for crass political reasons, it's still acceptable because "as the opinion of the Court well explains, the FCC's reasons for its action were the sort of reasons an agency may consider and act upon." However, he implies that his support for the Commission might change if, on remand, the Second Circuit bases a future decision favoring Fox on constitutional grounds.

Justice Breyer penned the main dissent to this ruling, in which Justices Stevens, David Souter and Ruth Bader Ginsburg joined, and his point is that the Commission "failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception."
Breyer takes issue with Scalia's claim that the FCC didn't abuse its power in restricting expletive use, noting that the APA prohibits "agency action that is 'arbitrary, capricious [or] an abuse of discretion.'" [Emphasis in original]

"Courts have applied the provision sparingly, granting agencies broad policymaking leeway," Breyer writes. "But they have also made clear that agency discretion is not 'unbounded.'"

But the nub of Breyer's objection is here:

"Moreover, an agency must act consistently," he writes. "The agency must follow its own rules... To explain a change requires more than setting forth reasons why the new policy is a good one. It also requires the agency to answer the question, 'Why did you change?' And a rational answer to this question typically requires a more complete explanation than would prove satisfactory were change itself not at issue. An (imaginary) administrator explaining why he chose a policy that requires driving on the right-side, rather than the left-side, of the road might say, 'Well, one side seemed as good as the other, so I flipped a coin.' But even assuming the rationality of that explanation for an initial choice, that explanation is not at all rational if offered to explain why the administrator changed driving practice, from right-side to left-side, 25 years later." [Emphasis in original]

Scalia claims to deal with this issue in Sec. III-E of the opinion, but the best he can do is A) avoid the question of the "reason(s)" behind the change in policy – free speech advocates already know it was due purely to the unscientific influence of religious conservatives – and B) refer to the Second Circuit's Remand Order – originally, the Second Circuit ordered the FCC to reconsider its ruling, but the agency elected to appeal to the Supreme Court instead – about "why the Commission believes that its indecency-enforcement regime ... is consistent with the First Amendment" – again, avoiding the supposed reasons for the change in policy.

"After all, if it is always legally sufficient for the agency to reply to the question 'why change?' with the answer 'we prefer the new policy' (even when the agency has not considered the major factors that led it to adopt its old policy), then why bother asking the agency to focus on the fact of change?" Breyer continues later. "More to the point, would the law exempt this and no other aspect of an agency decision from 'arbitrary, capricious' review? Where does, and why would, the APA grant agencies the freedom to change major policies on the basis of nothing more than political considerations or even personal whim?" [Emphasis in original]

Good questions, and ones for which the majority has no answer.

Most of the rest of Breyer's dissent is taken up tracing the history and bases for the Pacifica decision and the FCC's arguments in favor of the ruling, and it's a worthwhile read for students of speech regulation. Breyer repeatedly notes the instances where both the courts and the agency have stressed that "speech that is indecent must involve more than the isolated use of an offensive word." He also destroys one of Scalia's arguments, that Justice Lewis Powell, in his Pacifica concurrence, had left the door open to banning fleeting expletives:

"These two sentences are not a summary of the FCC's discussion about why it abandoned its prior understanding of Pacifica. They are the discussion," Breyer writes. "These 28 words (repeated in two opinions) do not acknowledge that an entirely different understanding of Pacifica underlay the FCC's earlier policy; they do not explain why the agency changed its mind about the line that Pacifica draws or its policy's relation to that line; and they tell us nothing at all about what happened to the FCC's earlier determination to search for 'compelling interests' and 'less restrictive alternatives.' They do not explain the transformation of what the FCC had long thought an insurmountable obstacle [to unfettered regulation] into an open door."

Toward the end of his dissent, Breyer makes some other excellent points.

"The FCC points to no empirical (or other) evidence to demonstrate that it previously understated the importance of avoiding the 'first blow,'" Breyer writes, referring to a child's first exposure to indecent language. "Like the majority, I do not believe that an agency must always conduct full empirical studies of such matters. But the FCC could have referred to, and explained, relevant empirical studies that suggest the contrary. One review of the empirical evidence, for example, reports that '[i]t is doubtful that children under the age of 12 understand sexual language and innuendo; therefore it is unlikely that vulgarities have any negative effect.' Kaye & Sapolsky, Watch Your Mouth! An Analysis of Profanity Uttered by Children on Prime-Time Television, 2004 Mass Communication & Soc'y 429, 433 (Vol. 7) (citing two studies). The Commission need not have accepted this conclusion. But its failure to discuss this or any other such evidence, while providing no empirical evidence at all that favors its position, must weaken the logical force of its conclusion."

"The FCC also found the new policy better because it believed that its prior policy 'would as a matter of logic permit broadcasters to air expletives at all hours of a day so long as they did so one at a time'," Breyer continues. "This statement, however, raises an obvious question: Did that happen? The FCC's initial 'fleeting expletives' policy was in effect for 25 years. Had broadcasters during those 25 years aired a series of expletives 'one at a time?' If so, it should not be difficult to find evidence of that fact. But the FCC refers to none. Indeed, the FCC did not even claim that a change had taken place in this respect. It spoke only of the pure 'logic' of the initial policy 'permitting' such a practice. That logic would have been apparent to anyone, including the FCC, in 1978 when the FCC set forth its initial policy."

As we said: A "solution" chasing a non-existent problem.

While Justice Stevens agreed with (and signed onto) Breyer's dissent, his own writing raises several important points, the most notable of which is the fact that what the FCC includes as "indecent speech" hardly fits the everyday use of the words at issue.

"While the 'repetitive use' issue has received the most attention in this case, it should not be forgotten that Pacifica permitted the Commission to regulate only those words that describe sex or excrement," Stevens points out. "The FCC minimizes the strength of this limitation by now claiming that any use of the words at issue in this case, in any context and in any form, necessarily describes sex or excrement. The customs of speech refute this claim: 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.

"Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin," he continues. "These words may not be polite, but that does not mean they are necessarily 'indecent' under [18 U.S.C.] §1464. By improperly equating the two, the Commission has adopted an interpretation of 'indecency' that bears no resemblance to what Pacifica contemplated. Most distressingly, the Commission appears to be entirely unaware of this fact, and today's majority seems untroubled by this significant oversight."

Ginsburg, in her concurring dissent, elaborates on Stevens' point, and in passing affirms the narrowness of the Pacifica opinion, which dealt with "deliberately repeated ... dirty words 'over and over again.'"

"In contrast, the unscripted fleeting expletives at issue here are neither deliberate nor relentlessly repetitive," Ginsburg differentiates. "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," noting Justice Kennedy's statement in a 1996 case that "a word categorized as indecent 'often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power'."

The upshot of this decision, however, is a remand to the Second Circuit to reconsider the case "for further proceedings consistent with this opinion," which almost certainly will involve either a reargument (not likely) or simply a new look at the previous arguments with a concentration on the First Amendment aspects which the appeals court previously avoided, but which several justices here implied would change their view on the outcome. The scheduling of such argument or reconsideration is at the discretion of the Second Circuit.

**

Bonus: A Sampling Of Right-Wing Reactions To The Decision:

Robert Peters, president of Morality In Media:

"Today's decision does not say that the FCC can or should punish the utterance of every expletive in broadcasting; it does uphold FCC authority to punish a broadcaster in appropriate cases.

"Historically, the FCC has applied a 'nuisance rationale' in determining whether content is 'indecent;' and as the Supreme Court observed in a 1978 case, the nuisance concept 'requires consideration of a host of variables,' including time of day, nature of the audience, program content, etc.

"It doesn't take much imagination to think what some broadcasters would do if they had an absolute 'right' to curse at least once in every program. Instead of it being Red Skelton signing off with, 'Good night and God bless,' it would be someone saying, 'Good night and *$@#!&%.'

"The broadcast indecency law is intended in part to protect children, and a child does not need to hear an expletive repeated in order to begin using it. See, e.g., 'What a Chatterbox,' Talaris Institute, where we read: 'Sometime around the age of 18 months many children experience what researchers call a "word spurt"…Word spurt is an increase in the rate at which children learn to say new words… [M]ost children also begin using new words after hearing them only once.'

"Nor does a child have to understand the meaning of a curse word for harm to result. All the child has to do is repeat the word to other children his or her age or to a teacher."

**

Tim Winter, president of Parents Television Council:

"Today's ruling by the Supreme Court is an incredible victory for families. The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free... We implore the broadcast networks to abide by today's Court's ruling rather than to pursue a path of attempted obstruction with countless legal maneuverings."

**

Tony Perkins, president of Family Research Council:

"Today's Supreme Court ruling sends an unmistakable message to broadcasters: If you foul the public airwaves, you face the fine."

**

Rep. Trent Franks (R-Ariz.):

"Someone a long time ago said there comes that time in the life of every child when the door to childhood quietly closes forever. And after that, no mortal power on Earth can ever open it again. I think today's ruling will give us a chance to see the innocence in our children's lives last a little longer."

**

Wendy Wright, president of Concerned Women for America (CWfA):

"Broadcasters have the ability to bleep out offensive and crude language, but networks refused to act responsibly. Today the Supreme Court recognized that the FCC has the right to step in to protect viewers, especially young viewers, from offensive material. This is a step in the right direction to once again make television a safe form of entertainment."

**

Penny Nance, former policy Advisor to the Federal Communications Commission on indecency issues and current CWfA board member:

"Today's Supreme Court decision in Fox v. FCC is a huge victory for American families. Once again the Supreme Court has reaffirmed that the government does have a role in protecting children. Justice Scalia said the FCC's policy to ban fleeting expletives is entirely rational. American families understand that the public airwaves, like public parks, are owned by all of us. The networks do not have the right to pollute the airwaves with the 'F-word' at will."






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Mark Kernes

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