Another Round for Fleeing Fucks

There is little doubt that no off the cuff utterance has lived as long in the American legal system as Bono’s remark, in 2002, during the Billboard Music Awards on Fox, about winning a particular award:

[t]his is really, really fucking brilliant.

That statement, along with similar deployment of “fleeting expletives” by Cher and Paris Hilton around the same time, launched a legal battle that’s about to be taken up by the Supreme Court for the second time in three years. When the Court hears oral arguments today in FCC v. Fox Television Stations, the court may dive headlong into an issue they were able to avoid in 2009.

At one time, such isolated utterances of one of Carlin’s seven dirty words weren’t enough to drive the fellas at the freakin’ FCC up the wall. That all changed, as they went after Fox and a couple other networks for the fleeting fucks. In its 2009 decision, a sharply divided Court held that the change in policy was not “arbitrary and capricious” and thus didn’t violate any administrative law provisions. The Court punted on the issue of whether the FCC’s policy actually violated the First Amendment.

On remand, the Second Circuit found that the policy violated the First Amendment because it was too vague. It’s hard to argue otherwise if read the disparate treatment of the same language in similar televised presentations. Saving Private Ryan with all its bad words (and, of course, violence, which bothers nobody) was just fine, but Martin Scorcese’s epic PBS documentary The Blues, in which real people spouted a few real expletives, was not. It’s impossible to make rhyme or reason of the FCC’s rulings in this area.

But that’s not all that is at stake tomorrow. Fox , and some of their amici, argue that the Court should strike down the foundation of any FCC regulation of naughty words on TV, the Pacifica case from 1978. That was the case in which the court held that the FCC could ban Carlin’s routine (which had been broadcast on radio), because of the pervasive nature of the broadcast medium. As the Fox brief makes clear, broadcast TV, while it was once pervasive, today is only a sliver of the media available to 21st-century eyes and ears. Given that reality, Fox argues that the FCC should have the same authority to regulate broadcast TV as to, say, the Internet or cable/satellite TV – which is to say none at all.

It will be interesting to see whether the Court goes that far, or simply smacks down the FCC’s policy on vagueness grounds. I’d like to see them go whole hog, but we’ll see.

For a much more in depth preview of the case, see Lyle Denniston’s write up over at SCOTUSBlog.