A clearly divided Supreme Court on Tuesday debated indecent language for an hour without anyone using the words in question.
Circumlocutions like “the F-word” and “the S-word” sufficed as the court considered the year's highest-profile free-speech controversy. All signs now point to a tight decision over whether broadcasters can be fined for allowing use of so-called “fleeting expletives,” which are swear words used in passing.
The court's conservative justices showed sympathy for the Federal Communications Commission members who want to punish broadcasters. Associate Justice Antonin Scalia denounced the “coarsening” effect of swearing, while Chief Justice John Roberts warned about “impressionable children” being harmed by inherently dirty words.
“Why do you think the F-word has shocking value?” Robert asked rhetorically. “It's because it's associated with sexual or excretory activity; that's what gives it its force.”
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Added Scalia, “that's what gives it its zing.”
But other justices sounded more willing to tolerate the occasional swear word, with Associate Justice John Paul Stevens, a Navy veteran, noting that sometimes “you can't help but laugh” at how a swear word is deployed.
More pointedly, some justices suggested the FCC's stern new swear words policy came about arbitrarily.
“There seems to be no rhyme or reason with some of the changes the commission has made,” Associate Justice Ruth Bader Ginsburg said.
The dispute in the case called FCC v. Fox Television Stations centers on two questions. The broader one is whether regulators violate First Amendment free speech rights by fining broadcasters for an occasional swear word. The other question is narrower, and it might be the only one the court actually decides: whether the FCC acted “arbitrarily and capriciously” in changing its policy about indecent language in 2004.
“It was, at a minimum, a rational policy choice,” Solicitor General Gregory Garre insisted.
Loosening indecency standards, Garre warned ominously, could lead to “Big Bird dropping the F-bomb on ‘Sesame Street.'”
Attorney Carter Phillips, representing Fox Television Stations, retorted that “there was no explanation” for the FCC's policy change.
The policy change in question arose following a live 2003 broadcast of the Golden Globe Awards, when the lead singer Bono from the Irish rock band U2 declared his award was “really, really, f—ing brilliant.” During the 2003 Billboard Music Award, quasi-celebrity Nicole Richie declared “it's not so f—ing simple” to remove “cow s— out of a Prada purse.”
And during the 2002 Billboard Music Awards, Cher celebrated by denouncing her myriad doubters.
“I've also had critics for the last 40 years saying that I was on my way out every year. Right.” the Fresno High School dropout originally known as Cherilyn Sarkisian said.
“So f— 'em. I still have a job, and they don't.”
FCC career staffers initially considered such language the kind of passing expletive, drained of sexual content, that has been grudgingly accepted for the past three decades.
This reasoning dates back to a mid-1970s Supreme Court decision, involving comedian George Carlin, in which the court determined that “isolated use of a potentially offensive word” differs from the “verbal shock treatment” of profane repetition
A court decision is expected by next June.