Tuesday, speaking in euphemisms and equivoque language, United
States Supreme Court justices debated a conflict between the FCC and several
broadcast networks over the issue of swear words, and if they will be allowed
to be broadcast over television networks.
The case’s origins lie in a 2003 Golden Globes transmission
in which U2 frontman Bono used an expletive. The ‘incident’ marked the start of
a gradual turnaround in FCC policies, who also declared a 2002 f-bomb drop by
Cher on a Fox awards show to be indecent. This and several other incidents
which have come under the FCC’s scrutiny are known as “fleeting expletives,”
that is one-off usage of explicit language, usually by a guest at a live show.
Fox television stations, considering the limits being
imposed by the FCC on fleeting expletives to be arbitrary and in violation of
the First Amendment, filed lawsuit against the FCC. A lower court ruled against
the commission, saying it lacked sufficient grounds to pick on one-time
expletives, but failed to touch the First Amendment issue.
In Tuesday’s appeal hearing, none of the justices or the
lawyers speaking used the explicit words directly, but chose instead to express
them in a veiled manner.
It is generally unknown what side the justices are tending
to. Some of them seemed to favor one of the sides, but others did not express
their opinion. For instance Justices Clarence Thomas and Samuel Alito had
nothing to ask. This makes it very hard to predict their ruling, or whether the
justices will address the issue of the First Amendment breach which the lower
court ignored
United States Solicitor General Gregory Garre, who spoke on
behalf of the FCC, conveyed that regulators examine objectionable words within
context, and consider if the word is used for shock value or titillation. Such examples
are vulgarities by celebrities on TV. It’s far less likely for a news program,
for example, to be sanctioned because of language.
"There seems to be no rhyme or reason for some of the
(FCC) decisions,” Justice Ruth Bader Ginsburg said, appearing to favor the
broadcasters. She noted that a jazz documentary was found indecent due to
expletives while a feature film aired on TV, Saving Private Ryan, was not.
Justice John Paul Stevens asked if mild expletives like “dung”
would be indecent, and also if vulgar language was found more acceptable if it
was genuinely “hilarious.”
Garre replied that while “dung” would not be “patently
offensive,” no amount of humor is going to save a vulgar expression from
sanction. He argued that when a four-letter word, which is normally associated
with sex, was not used literally, "it [still] inevitably conjures up a
core sexual image," and is therefore indecent.
"Which is, indeed, why it's used," remarked
Justice Antonin Scalia, the one who seemed most sympathetic to the FCC. Scalia
posited that widespread use of vulgarity on TV had lead to a coarsening of
language in America.
What’s more, chief Justice John Roberts sided with the FCC,
remarking that certain expletives are used just because of their association
with sexual or excretory activity, noting that “That’s what gives it its force.”
Carter Phillips, who represents Fox Television Stations,
argued that due to the “chilling effect” the policy is having on the industry,
they stand to lose money. After all, when broadcasters can be fined more than
$325,000 per ‘F***’, even if it’s overheard at a sports event, the networks
would frankly be too scared to cover it anymore.
