With all the chuckles, celebrity comments and linguistic explorations into the meaning of the word “fuck,” the oral arguments Tuesday in FCC v. Fox at the Supreme Court at times had the air of a comedy show.
But interwoven among the lighter moments was a weighty discussion about broadcast regulation and the legal and policy implications of the FCC’s move toward fining television stations for one-time use of fleeting expletives.
The question before the Court on Tuesday was whether the FCC improperly created or changed administrative rules when in 2004 it changed its policy for sanctioning networks for airing expletives.
The old policy, in place since the Court’s FCC v. Pacifica Foundation decision in 1978, was to fine television stations only for repeated uses of indecent language. But after a string of episodes in 2002 and 2003 in which celebrities used the word "fuck" on live television before it could be bleeped, the FCC enacted a policy to sanction the networks for each use of accidental “fleeting expletives.”
Though the underlying question was one of administrative law, the First Amendment implications of the policy could not be ignored.
The Court usually refrains from deciding any constitutional issues if a decision can be rendered under other legal principals. But as Justice Ruth Bader Ginsburg stated, the First Amendment was “the elephant in the room.”
Carter Phillips, the attorney for Fox, argued that in cases involving the governmental regulation of speech, such as this one, the Court needed to take the First Amendment concerns into account, even when deciding the case under administrative law.
“At the end of the day you are regulating the content of speech, and therefore the First Amendment ought to inform everybody’s assessment of what the Commission can do,” Phillips argued to the Court.
The justices seemed interested in discussing the various meanings and interpretations of what they all referred to only as “the F-word.” Because the FCC policy defines "indecent" as the description or depiction of sexual or excretory organs, the justices questioned whether the word always has a sexual connotation.
“I think everyone acknowledges that a world like the F-word is one of the most graphic, explicit, and vulgar words in the English language for sexual activity,” argued Solicitor General Gregory Garre, representing the FCC.
But the justices disagreed on that. Justice John Paul Stevens spoke up a couple times to ask whether the word is ever used in non-sexual ways, or whether other words – like “D-U-N-G” (yes, he spelled it out) would be indecent as well.
“Is it ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious — very, very funny?” Stevens asked Garre.
And while Justice Antonin Scalia on several occasions made clear his opinion on using vulgar language (even once saying that of course the word has force because people “don’t use the word ‘golly wiggles’ instead of the F-word”), he also admitted in response to Justice Stevens’s question that it can be funny too.
“Oh it’s funny,” Scalia said. “I mean, bawdy jokes are OK . . . if they are really good.”
But though there was plenty of poking fun at the language, Garre kept trying to steer the court back to what he argued was the importance of regulating so-called naughty words. He said that the public expects not to hear expletives on broadcast television, and it would be "remarkable" to live in a world with, as an "extreme example . . . Big Bird dropping the F-bomb on Sesame Street."
Justices Ginsburg and Stevens, particularly, took issue with Garre’s arguments about what was indecent, asking him to justify the need to regulate broadcast television in a world filled with indecency on the Internet and cable television.
Garre’s response: those people who want indecency can find it elsewhere; broadcast networks should be a safe-haven from indecency.
While some justices focused on the meaning of the word, Chief Justice John Roberts had a few questions about the context. He seemed to assert that hearing Nicole Richie say the "F-word" on the Billboard Music Awards is shocking for children, but if the word had been uttered at the broadcast of a high school football game it would not have the same vulgar meaning.
Not to be ignored among all this dissection of language were the implications the FCC policy has on local television stations covering live and newsworthy events. Garre conceded that the FCC policy would not fine a television station if a newscast aired indecent language. But coverage of newsworthy events is still affected by the policy, Phillips argued, citing a Vermont television station that refused to air a political debate because of a fear that one of the candidates would use improper language that would subject the station to a fine it could not afford.