Is Free Speech really Free?”

The keeper of the King’s conscience

Does the network T.V. viewing public require protection by the F.C.C. from exposure to foul language?  According to Justice Scalia writing for the majority, YES. The U.S. Supreme Court refused to substitute its own judgment of a ruling by the F.C.C. that use of the F-word was “actionably indecent;” and overturned a 2009 Circuit Court decision in FCC v. Fox Television Stations, 129 S.Ct. 1800 (2009).

The Story

This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f* * * `em.”

The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called “The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it `The Simple Life?’ Have you ever tried to get cow s* * * out of a Prada purse? It’s not so f* * *ing simple.” Id.

Following each of these broadcasts, the Commission received numerous complaints from parents whose children were exposed to the language.

The Legal background

Justice Scalia incorporates a detailed chronology of prior obscenity rulings, and obscenity standards applied by the F.C.C. In addition, Justice Scalia writes:

Judged under the above described standards, the Commission’s new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious. First, the Commission forthrightly acknowledged that its recent actions have broken new ground, taking account of inconsistent “prior Commission and staff action” and explicitly disavowing them as “no longer good law.” Golden Globes Order, 19 FCC Rcd., at 4980, ¶ 12. To be sure, the (superfluous) explanation in its Remand Order of why the Cher broadcast would even have violated its earlier policy may not be entirely convincing. But that unnecessary detour is irrelevant. There is no doubt that the Commission knew it was making a change. That is why it declined to assess penalties; and it relied on the Golden Globes Order as removing any lingering doubt. Remand Order, 21 FCC Rcd., at 13308, ¶ 23, 13325, ¶ 61.

Moreover, the agency’s reasons for expanding the scope of its enforcement activity were entirely rational. It was certainly reasonable to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent. As the Commission said with regard to expletive use of the F-Word, “the word’s power to insult and offend derives from its sexual meaning.” Id., at 13323, ¶ 58. And the Commission’s decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with the context-based approach we sanctioned in Pacifica, 438 U.S., at 750, 98 S.Ct. 3026. Even isolated utterances can be made in “pander[ing,] … vulgar and shocking” manners, Remand Order, 21 FCC Rcd., at 13305, ¶ 17, and can constitute harmful “`first blow[s]‘” to children, id., at 13309, ¶ 25. It is surely rational (if 1813*1813 not inescapable) to believe that a safe harbor for single words would “likely lead to more widespread use of the offensive language,” Golden Globes Order, supra, at 4979, ¶ 9.

When confronting other requests for per se rules governing its enforcement of the indecency prohibition, the Commission has declined to create safe harbors for particular types of broadcasts. See In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶ 12 (repudiating the view that the Commission’s enforcement power was limited to “deliberate, repetitive use of the seven words actually contained in the George Carlin monologue”); In re Infinity Broadcasting Corp. of Pa., 3 FCC Rcd., at 932, ¶ 17 (“reject[ing] an approach that would hold that if a work has merit, it is per se not indecent”). The Commission could rationally decide it needed to step away from its old regime where nonrepetitive use of an expletive was per se nonactionable because that was “at odds with the Commission’s overall enforcement policy.” Remand Order, supra, at 13308, ¶ 23.

The fact that technological advances have made it easier for broadcasters to bleep out offending words further supports the Commission’s stepped-up enforcement policy. Golden Globes Order, supra, at 4980, ¶ 11. And the agency’s decision not to impose any forfeiture or other sanction precludes any argument that it is arbitrarily punishing parties without notice of the potential consequences of their action.

Do you remember George Carlin’s “7 Dirty Words” monologue?

This was the basis for one of the F.C.C. landmark rulings. See, In re Pacifica Foundation, Inc., 2 FCC Rcd., at 2699, ¶ 12



Wow. An awful lot of time spent analyzing the F-word. Under the guise of protecting the sensibilities of our children, free speech takes a beating.

The more you ban, the more children want to know.

This is not yelling “fire” in a packed movie theatre. It is a one time cuss.

Scary decision.

Tags: , , ,


  1. » In Video Game Case, Supreme Court Extends Line of Permissive First Amendment Rulings - June 28, 2011

    [...] I love the freedom of speech granted to us by the First Amendment to the U.S. Constitution. But, how in the world do the honorable justices reconcile this decision with the Court’s decision in Federal Communications Commission, et al., Petitioners v. Fox Television Stations, Inc., et al., 129 S.Ct. 1800 (2000)? In the FCC case, one dirty word was found to violate the Act. You may wish to check one of my prior Blog posts out about this issue. Is Free Speech Really Free? [...]

Leave a Reply

You must be logged in to post a comment.