On the morning of Election Day, the Supreme Court tiptoed around the profanities that defined the case before it in a way that greatly disappointed its audience. “Sh** Doesn’t Happen,” reported Slate. “Prudence prevailed, but the news stops there,” headlined a disenchanted SCOTUS blog. In the case before the Court that morning, FCC v. Fox Television Stations, five different networks stood up to the Federal Communications Commission, whose tightening of profanity regulations in recent years has been compared to “a Victorian crusade” by former officials of the FCC itself.
First, a little context. Profanity on the airwaves made its first major splash in the shape of George Carlin, whose stand-up routine, “Seven Words You Can Never Say on Television,” landed him in a New York courtroom. That was 1974. The Vietnam War was in its last months, Nixon resigned from the presidency, and Larry Flynt published the first issue of Hustler. America was changing. But not the airwaves, ruled a Supreme Court by a mere one-justice margin in 1978.
“Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual’s right to be left alone plainly outweighs the First Amendment rights of an intruder,” wrote Justice Stevens, the only member of the Court to still sit there today, 30 years later.
On November 4, 2008, Justice Stevens, at 88, came the closest to rewarding the expectant courtroom with profanity. “Could I ask one question that just occurred to me?” Stevens said to Solicitor General Gregory Garre, who argued the case on behalf of the FCC. “Do you think the use of the word dung, D-U-N-G, would be indecent?” The question addressed the fact that the FCC had recently taken the position that obscenities inherently implied sexual and excretory activities. This proved to be a difficult point to defend, as surely Bono, when he accepted a Golden Globe in 2003 with the words “This is really, really fuckin’ brilliant,” was not referring to any sexual aspirations he had for his prize.
Back when the Carlin case was decided, the use of “fleeting” expletives on air was considered beyond the control of the networks, and therefore escaped penalty from the FCC. However, in 2004, after Cher and Nicole Richie salted their Billboard awards acceptance remarks with “fuck” and “cow shit,” the FCC warned the stations that from here on out, any networks who aired expletives, fleeting or otherwise, live or canned, would be subject to fines of up to $325,000.
But what about live newscasts of natural disasters? cried the networks. What about potty-mouthed politicians, and raucous fans at sporting events? What about unruly celebrities and flashers and even documentaries? The FCC countered that stations could install five-second-delay equipment to give them time to bleep out obscenities before they leap into living rooms. It also said that it would take each instance in context, allowing some exceptions for newscasts. And so the case went to court.
What seemed at first like a weak argument from the FCC received relative reverence from conservative justices Roberts and Scalia, who pelletted the networks’ attorney, Phillip Carter, with questions and hypotheticals. Court watchers left wondering who will prevail in a case that could either force the FCC out of the business of regulating obscenities all together, or allow them to impose penalties on even small stations that can’t afford the kind of time-delay equipment that might save them from “fleeting expletives.” “Fines of $325,000 per violation mean life and death for these stations,” said Andy Schwartzman, attorney for Creative Voices in Media, immediately after oral argument on Tuesday.
“The problem is that if you look at most of the decisions and you try to understand why one is indecent, and the other is not, the average person is going to scratch their heads and say, ‘I have no idea how I distinguish one from another,” said Carter, emerging from the fire of Roberts and Scalia. “In that situation, broadcasters are naturally going to say, ‘We’re not going to carry anything that’s going to get us anywhere near that kind of language, and therefore they’re going to end up self-censoring a lot more than is appropriate.”
Despite the letdown of courtroom prudery, oral argument did have its worthwhile moments, again from Justice Stevens: “Is it ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious? Very, very funny? Some of these things,” he observed, amid laughter in the courtroom, “you can’t help but laugh at. Is that a proper consideration, do you think?” Even the Solicitor General smiled and conceded perhaps, yes, just as Justice Scalia joined in the fun, adding, “I mean, bawdy jokes are OK if they are really good.” •