Among the whisperers in the U.S. Supreme Court’s marble halls and majestic courtroom, many a hushed conversation speculated on the same question one recent Tuesday morning. As spectators waited in relative silence for the justices to march in and hear arguments in FCC v. Fox, there was both a serious inquiry and a near fascination about who, if anyone, would utter those words. Some well-dressed spectators were overheard saying: “Do you think they’re going to use the words?” “Are they gonna say it?” “I heard one of the lawyers is going to.”
Once the arguments began, Justice Ruth Bader Ginsburg inquired: Was the Federal Communications Commission (FCC) really arguing that there were two words in question, and that broadcast television stations should be held accountable when they are spontaneously uttered live on the air? The high court was being asked to weigh in on, of all things, two bad words, which were alluded to in well-worn euphemisms, but never uttered.
This case was a consolidation of four after the 2d U.S. Circuit Court of Appeals ruled that the FCC’s action was based on vague rules, lacking clarity and fairness. While most Supreme Court cases earn scant attention from the public, this case had elements that most cases lack: titillation and celebrity. It sounded incongruous hearing the justices talk about Paris Hilton and Nicole Richie, who are only famous for being famous, or Cher, whose profanity-laced commentary landed Fox in hot water. The other spontaneous or fleeting expletives came from a guy booted off the island in Survivor who used a variation of one of the words on the CBS Morning Show and ABC’s crime drama NYPD Blue — apparently too “blue.”
For all the talk about the standards the FCC may employ and the notice and fairness it must apply under the Administrative Procedure Act, the case is a question of content that the government will permit on the public airwaves. The specter of sanctions loomed just as heavily as the prospect of broadcasters pulling their punches — hence a chilling effect.
The implications of having the FCC make rulings based on the context and content of speech come down to a question of government power and society’s mores. The FCC acts on complaints, which tend to be from well-organized and vocal groups with a morality agenda.
Though television programming reflects society, Justice Stephen G. Breyer elicited chuckles while noting that, in the real world, people sometimes swear. Similarly, justices Anthony M. Kennedy and Antonin Scalia asked whether American culture has changed to the point where these two words are more tolerated. Then Scalia questioned whether the networks themselves may have some culpability in the coarsening of American culture.
A lot has changed in the 30 years since FCC v. Pacifica, the case at the heart of the arguments. Pacifica supports the FCC’s authority to sanction broadcasters when indecent words hit the air because of scarcity of the airwaves, nuisance theory and the overall offensiveness and inappropriateness of certain words, especially for children. This famous case hit the docket after a father complained that a radio station played segments of a now-legendary monologue by comedian George Carlin.
There’s an irony that, in the same year the comedian, known for his social commentaries, died, the high court revisited the decision. There was an even greater irony when the solicitor general explained the case’s rationale to its author, Justice John Paul Stevens.
Though Carlin gave us the initial precedent, another celebrity has mouthprints on the current case: singer/activist Bono. The controversy over spontaneous fleeting expletives emanates from a conflicting decision by the FCC following Bono’s use of one of the two words during his acceptance speech at the 2003 Golden Globe Awards. The FCC created confusion when it based its decision on grammar because Bono used the word as an adjective, not a verb, which was deemed less offensive.
With regulators viewing profanity with the eye of an elementary school grammarian, the networks argued this was too confusing, arbitrary and capricious.
Society’s changing mores
The spontaneous fleeting expletive seems like the morality police’s last chance to get in a dig as traditional broadcast TV’s influence and viewership wanes, cable TV continues to blossom, and more content becomes accessible to individuals via the Internet. User-driven and user-demand content is able to circumvent the government censors because it is delivered through pay cable or the Internet.
But just as America’s mores change and evolve, or devolve, so do the media’s. Though the oral arguments presented opportunities to discuss the legal implications of some of those changes, even in some laughable examples — perhaps a cursing Big Bird on Sesame Street — nobody actually used those two words.
Well, there’s always cable for that.
Roy S. Gutterman is a visiting professor of communications law and journalism at the S.I. Newhouse School of Public Communications at Syracuse University.