April 28, 2009

The Supreme Court decides the "fleeting expletives" case.

SCOTUSblog reports:
Splitting 5-4, the Supreme Court upheld the government’s power under existing law to ban the use on radio and TV of even a single four-letter word that is considered indecent — but left open the question of whether the ban might violate the First Amendment, at least in some situations. The Court, in an opinion by Justice Antonin Scalia, said the Federal Communications Commission’s switch in policy to ban even a fleeting use of such a word was “entirely rational” under the law that governs federal administrative powers....

His written opinion, in a case dealing with uses of those four-letter words during performance awards broadcasts involving celebrities, took a swipe at “foul-mouthed glitteratae from Hollywood.”
Glitteratae... female glitterati? Cher was involved. And Nicole Ritchie.
Basically, the ruling simply means that the FCC provided a sufficient explanation of why it switched from a more relaxed policy on “dirty words” to a near-total ban on “fleeting expletives.”
So the constitutional free-speech question remains.
... Justice Clarence Thomas, in a separate concurring opinion, said he would be open to reconsidering two of the Court’s major precedents that allow the government the constitutional authority to treat broadcasting differently from the rest of the press for First Amendment purposes. Those two precedents — Red Lion Broadcasting v. FCC in 1969 and FCC v. Pacifica Foundation in 1978 — brought a “deep intrusion into the First Amendment rights of broadcasters”....
Bring it on.

22 comments:

rhhardin said...

``Fleeting'' sounds like a euphemism.

Bissage said...

It is. Link.

Horace said...
This comment has been removed by the author.
Horace said...

So the constitutional free-speech question remains.Someone should answer this question. I'm thinking . . . hmmmm . . . someone in a courthouse somewhere . . . or better yet several someones . . . 9 sounds like a good solid figure. Maybe make them take an oath to uphold the Constitution, promise them job security and good benefits, then pay them to answer questions like this.

Beth said...

"foul-mouthed glitteratae": what a moralizing little fuck.

rocketeer67 said...

At first, I read that as "fleeing expletives." I pictured Air Foce one, tailed by an F-16, buzzing a city full of panicked expletives.

MadisonMan said...

Scolds are alive and well.

rhhardin said...

Litteratus (well versed in literature) is an adjective and so correctly inflects to the gender of what it's understood to modify. So likewise with glitteratus, I'd assume.

John Thacker said...

Not the first time Justice Thomas has indicated a willingness to overturn a precedent, but lamented in his opinion that he was unable to since nobody brought up the issue of overturning the precedent in arguments or briefs, and that he had to rule this way given that the precedent was not being overturned. The case of automobile stops is another example.

Once you rely on Red Lion and FCC v. Pacifica, you're just negotiating over the scale of the regulations acceptable.

traditionalguy said...

The language police are alive and well, and are coming to watch entertainment shows close to you. Will our Titus have to learn a new form of tongue control? These language police are the guys who Hate Speech, unless of course they can start a cap and trade system for rationing the use of Bad Words. The catch with that is that the Baptists and the Mormans will get all the money, so it would be an establisment clause violation.

John Thacker said...

Did people commenting even read the article, or Ann's comments?

The case goes back to the lower court to decide on the First Amendment issues, which can then be appealed back to the Supreme Court.

This ruling was about the limited question of once you grant the FCC powers to restrict dirty words on broadcast (but not cable) television, is it permissible for the FCC to restrict the use of such words even in live awards shows for presumably accidental usage, or are they only allowed to restrict it in scripted works? The Court decided that, given the precedents and the executive latitude allowed in the statute, the FCC could choose either level of enforcement.

The First Amendment question will be brought back up; Justice Thomas's concurrence suggests that the result may be quite different.

traditionalguy said...

Thanks John... It's good to know that the Language Police are only half way there.

Bruce Hayden said...

The Thomas concurrence is interesting in that he is essentially preemptively attacking the "Fairness Doctrine". His view is that the Red Lion doctrine was suspect at the time on 1st Amdt. grounds, and is totally unsupportable now, given where technology has gone in the meantime.

John Thacker said...

Bruce Hayden--

Right. I think that there's a strong argument that to whatever degree the limited number of stations and airwaves made FCC regulation or the Fairness Doctrine make sense in the 60s and 70s, it doesn't make sense now. There's not only ubiquitous cable and satellite television, but a whole host of other media out there.

Incidentally, the original FCC power case, Red Lion v. FCC was indeed a Fairness Doctrine case against a station broadcasting a fundamentalist Christian program attacking a politician without "balance." FCC v. Pacifica, the second case, was about a left-wing radio station and dirty words.

Plenty of progressive and left-wing groups, along with some more generic media reform groups, want to save Red Lion while allowing expletives. You see, they believe that the FCC should be able to regulate ideas, just not dirty words. Other conservative groups want the FCC to be able to regulate both, while other conservative groups, libertarians, and broadcasters want the FCC to be able to regulate neither.

I have to agree that it seems sort of ridiculous to say that the FCC can have all sorts of regulatory power over what people can say on the airwaves in the public interest, but is Constitutionally prevented from interfering with expletives as it's interfering with ideas. I don't think, particularly in the modern climate, that either regulation satisfies the First Amendment.

downtownlad said...

Yup, because we all know that the first amendment says that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech (except for the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits) or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

downtownlad said...

I'll also add that all the conservatives who are afraid of the Fairness Doctrine, absolutely love this decision. Which proves they are all a bunch of hypocrites.

rocketeer67 said...

I'll also add that all the conservatives who are afraid of the Fairness Doctrine, absolutely love this decision.

Picked up another transmission with your fillings again, did you?

Old RPM Daddy said...

Tangential comment: Doesn't SCOTUS sound like something you'd need to see the dermatologist about?

John Thacker said...

"I'll also add that all the conservatives who are afraid of the Fairness Doctrine, absolutely love this decision. Which proves they are all a bunch of hypocrites."downtownlad--
1. Not "all the conservatives." Some are against both sorts of regulation, just as some liberals and progressives are. Both sides do have people who like one regulation but not the other. I don't think that automatically makes them "hypocrites," though I wouldn't distinguish the two, personally.

2. Personally I'd give the FCC the power to regulate neither, but I think it's more rational/less hypocritical to be against seven words but allow free discussion of ideas than to be willing to ban entire ideas or attacking incumbents, but be okay with using expletives. Both positions are to my mind stupid, but I find the hypocritical progressives more hypocritical than the hypocritical conservatives here. YMMV, of course.

It will be interesting to see if the second version has any of the pragmatist liberals flip to the pro-regulation side, because they don't want to prevent all regulation just that they think goes too far. Oftentimes on the Court the idealist/pragmatist split is as important as liberal/conservative.

John Thacker said...

In fact, looking at the decision, it seems that Justice Stevens still stands behind Pacifica and banning the "Seven Dirty Words." So there you, in Justice Stevens's balancing world, it's perfectly Constitutional to ban the seven dirty words in a scripted program, but not Constitutional to ban them in an unscripted live program.

kentuckyliz said...

So is the FCC going to slap fines on the news networks with their talking heads snickering about the urban slang sexual meaning of teabagging?

AC: mmfmmmfmfmfmmmmmmm

(It's hard to talk while you're teabagging....)

Wen said...

Blue!