Court Slaps FCC, Ducks Free Speech Issue

It’s taken eight years, but the Supreme Court has finally ruled on the Cher/Bono/Richie fleeting expletives case (FCC v Fox Broadcasting) and NYPD Blue case (FCC v ABC). The Court unanimously reversed the FCC’s punishment of the two networks for showing 8 seconds of a character’s buttocks, and letting a few bad words on live TV go un-bleeped.

But it’s a mixed victory. Unfortunately, the Court decided these cases on procedural issues rather than First Amendment ones. And so Justice Anthony Kennedy noted that the FCC is “free to modify its current indecency policy” to make government censorship guidelines clearer.

That doesn’t mean the decision is worthless; the Court said the government couldn’t enforce laws without first announcing and describing them clearly, and that it had to enforce them consistently. Censorship laws don’t work well that way, so this is a good requirement. On the other hand, the Court left in place the antiquated idea that the government should and can protect us from bad words and pictures on the TV shows we choose to watch in our homes. This guarantees more of the continual, pointless battle about defining obscenity, poor taste, the alleged danger of sexual words & images, and parents’ rights to protect their kids—and parents’ over-reliance on a nanny-government to do that “protecting.”

The worse thing about this court decision is the Court’s self-censorship—a bad example for the rest of the country. Remember, one of these cases turned on the FCC’s criticism of Fox after Cher said “fuck ‘em,” Bono said “fucking brilliant,” and Nicole Richie said “getting cowshit out of a Prada purse.” The government’s insistence on sanctioning the corporations that broadcast this is big, big news. The public needs to know what behavior is considered so egregious that our government gives itself permission to control and punish it.

But the Court, in ruling on this rather momentous issue, couldn’t bring itself to describe exactly what had happened to trigger the massive government action the Court was overturning. It described the words in question as “f**k ‘em” and ‘”Have you ever tried to get cows**t out of a Prada purse? It’s not so f***ing simple.’”

This longstanding, pathetic epistolary game—insert magic symbols so that we simultaneously know what we’re all discussing, but don’t sear our eyeballs with the actual demonic word—may be harmless in some situations, but not this one. This is the Supreme Court of the United States. Nothing trivial happens here. They hear only a few dozen of the 10,000 cases that petition them every year, each one chosen because it addresses a momentous wrong or a momentous issue.

The Supreme Court said the government can’t capriciously decide that a word or image is illegal AFTER it’s been uttered or displayed—and chided the FCC for doing just that. That makes this ruling very, very important. The Court’s refusal to state exactly what words were involved in the trial is disrespectful to the judicial process, to Americans’ right to government transparency, and to the ability of people to manage their possible discomfort about actual public events.

Thus, The Court affirmed the rule of law, but not the rule of adults. It demanded the government play fairer, but declined to expect much from the citizenry. And it undermined its own decision. If you can say fuck on TV, why can’t you say it in a Supreme Court decision about saying fuck on TV? If the word isn’t too dangerous for TV, it isn’t too dangerous for the Court.

All that aside, one cool thing about the decision is that Cher and Bono are described as “singers,” while Nicole Richie, deemed by even the Supreme Court to lack any actual talent, is simply described as “a person.”

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