During the past weeks, as we reeled, and then began to recover, from the bombing of the Boston Mara­thon, we have had the opportunity to consider just what makes America great.
We have saluted the spirit of a city that would not be cowed. We have witnessed the camaraderie of runners, and Bostonians, and Americans. We have admired the courage and fortitude of both professional and amateur first-responders as they saved lives and revived flagging spirits.
But has one of America’s greatest treasures — the rule of law — been a casualty of the marathon bombings? During the manhunt for the bombers, law enforcement conducted house-to-house searches of the homes of innocent Bostonians and after Dzhokhar Tsarnaev’s capture unilaterally determined that public safety outweighed the need to inform him of his constitutional rights.
Shortly afterward, a less visible threat to the rule of law came in the form of a tweet — a unilateral tweet by a high public official expressing an opinion with which most Americans likely agree.
The tweet came in response to a passionate speech by a Boston hero. In the aftermath of a city lockdown, in the joy of the first baseball game after the end of the manhunt to top all manhunts, Boston Red Sox slugger David Ortiz spoke words straight from his heart.
And he invoked an expletive.
"We want to thank you Mayor Men­ino, Governor Patrick, the whole police department for the great job they did this past week," said Ortiz, as the game was broadcast live on television and radio. "This is our fucking city."
The Boston crowd roared its approval for this statement from "Big Papi," but the television and radio broadcasters no doubt groaned, then picked up the phone to call corporate counsel.
Since the 1970s, the Federal Com­munications Commission (FCC) has regulated "indecency," including profanity, on network television and radio. The U.S. Supreme Court gave broadcast indecency regulation its blessing in 1978 in a case involving broadcast of comedian George Carlin’s "Filthy Words" monologue. In that case, the court reasoned that the broadcasting of, say, a big baseball game was "pervasive" and uniquely accessible to children. The specific characteristics of the broadcast medium justified regulating indecent speech, even though the First Amendment clearly barred indecency regulation in other media.
Although social norms about profanity have changed a lot since 1978, 10 years ago the FCC instituted a crackdown on the broadcast of even "fleeting expletives," such as an unscripted use of "fuck" during a live broadcast of an awards show or an allegedly ­unscripted "wardrobe malfunction" during a Super Bowl halftime show. The FCC ­justified this crackdown by stating that even single instances of profanity may be "patently offensive" in the broadcast medium. Broadcasters argued that the FCC’s crackdown, which came with large fines, violated the First Amendment. Last year, however, the Supreme Court held merely that the new policy was problematic because the FCC had not given broadcasters adequate notice before they began applying it, thereby violating due process. Two Supreme Court justices argued that it was time for the FCC to get out of the business of indecency regulation altogether, but the remaining six who participated in the case dodged answering the question of whether the First Amendment allows a government agency to continue protecting us from profanity in the broadcast medium.
What is important here is not ­whether we agree with the FCC’s position on broadcast profanity — whether "isolated" or repeated — or even whether we agree with Big Papi’s patriotic sentiment. No, what is important is the unilateral move that came next.
Approximately 3 1/2 hours after Ortiz’s blooper, Julius Genachowski, the chairman of the FCC, declared that Ortiz’s use of the word "fucking" on a live broadcast was no big deal. He tweeted, "David Ortiz spoke from the heart at today’s Red Sox game. I stand with Big Papi and the people of Boston — Julius."
After the Supreme Court’s decision last June, several FCC commissioners stated that the agency would continue regulating broadcast indecency, though it was not clear whether they would continue to apply this policy to fleeting expletives or revert to the agency’s older policy of leaving them alone.
But Genachowski’s tweet raises important questions. Can the FCC chairman unilaterally decide not to fine broadcasters, as he sits and drinks beer and watches the baseball game on a Saturday afternoon? Should the rules change, shall we say, midgame? And can the FCC really announce a new rule via Twitter?
No matter what standard the FCC chooses to apply when ­considering whether to fine broadcasters for unplanned profanity, surely the FCC cannot hope to resolve the backlog of 500,000 indecency complaints currently before it by determining whether the words are "spoken from the heart," whether the words touch our hearts, whether they occur in a patriotic rather than an entertainment context, or whether the head of the agency regulating them agrees with the sentiments expressed. How would broadcasters confidently predict whether the FCC would issue fines for indecency under a "spoken from the heart" standard?
The FCC is currently asking the public to comment on how it should address indecency regulation. We should tell them: not like this. Why? Because, as David Ortiz explained (albeit in a different context), "Nobody is going to dictate our freedom." Especially with unfettered discretion, on a case-by-case basis.
Carter Phillips, the attorney who argued the most recent broadcast indecency cases before the Supreme Court, told us recently, "While I applaud the Chairman’s reaction to David Ortiz’s perfectly understandable use of the word ‘fucking,’ the situation just shows why unelected officials should not be in the business of deciding what speech is permissible and what speech is unacceptable. How anyone could distinguish Bono’s exuberance at winning an award and Ortiz’s intensity of emotion over the tragedy in Boston is unfathomable. I hope the Commission will realize finally that there is no constitutionally sound way to enforce the concept of indecency as applied to fleeting expletives and images on broadcast television."
Whether the FCC agrees with Phillips remains to be seen. In the meanwhile, standards should be applied consistently, across the board, and in a manner that demonstrates that the rule of law is still alive and well.
Lisa McElroy is an associate professor of law at Drexel University Earle Mack School of Law. Lyrissa Lidsky is a professor of media law at the University of Florida Levin College of Law, where she holds the Stephen C. O’Connell Chair in Law.