Editor’s Note: The following article is from the Planet Waves blog Psychsound, written by Steve Bergstein, our contributing editor and a civil rights lawyer who resides in upstate New York. –RA
In the early 1970s, the Supreme Court heard a case about an anti-war protester who walked through a courthouse wearing a jacket that said “Fuck the Draft.” When the Supreme Court heard an oral argument on whether the protester had the First Amendment right to do this, his lawyer was told not to use the word “fuck” in addressing the Supreme Court justices, who came from an older generation that did not throw around four-letter words in mixed company.
But the lawyer thought he had no choice but to say “fuck” in the ornate courthouse that is the symbol of American justice. He figured that it would hurt the case if he was afraid to say it when it counted most. He made the stuffy Chief Justice angry, but the lawyer won the case, and today Cohen vs. California is a landmark free-speech case, known for its logic that “one man’s vulgarity is another’s lyric.”
The word “fuck” is again before the Supreme Court, which heard argument a few weeks ago on whether the FCC can penalize TV stations when foul language makes it past the censors on live broadcasts. We are not talking about sitcom scripts or movie dialogue but programs like awards ceremonies when superstars who can’t control themselves say Fuck or Shit on live TV. We call that the “fleeting expletive.”
The Court heard the case on Election Day, an interesting coincidence. I have noted that this year’s presidential election has enormous consequences for the Supreme Court because some of the justices are nearing retirement and President Obama may have a chance to appoint two or three replacements. Change is near, and not just in the potential changes on the Court. According to a website that tracks Supreme Court activity, in the fleeting expletives case, “The court stenographer’s report indicates that ‘F-word’ appears in the transcript 16 times; that ‘F-bomb’ appears once, and that ‘S-word’ was spoken six times.” What caused the Supreme Court to blush in 1971 barely raises an eyebrow today, except that you still can’t say Fuck in court. Saying the “F-word” is enough.
I am not just being a smart-ass here. It’s not 1971 anymore. Television was broadly regulated for decades because it was the only game in town, and there were few TV airwaves, so the government had some leeway to regulate content, particularly vulgarities. We have all heard of George Carlin’s “Seven Dirty Words You Can’t Say on Television.” We celebrate Carlin’s wit and wisdom. But when the Supreme Court heard whether the FCC could punish the radio station for running Carlin’s vulgarities, the radio station lost the case even though the Court said that his words were not legally obscene. That’s because radio airwaves are not the street corner. There are zillions of street corners, but very few radio airwaves, so the government can more easily regulate them, particularly when children are listening.
The “fleeting expletives” case stems from the following facts, courtesy of Supreme Court Wiki: at the 2002 Billboard Music Awards, “singer-actress Cher used ‘the F-Word,’ ” and in 2003, “actress Nicole Richie used variations of that word and used the four-letter excrement word.” At the Golden Globe Awards in 2003 on NBC, “rock singer Bono used a variation of ‘the F-Word’.” As a result of these outrageous disgraces, the FCC announced that it can punish TV stations for using even a single four letter word on TV. The Supreme Court has to decide whether the rule against “fleeting expletives” is legal under the First Amendment, or whether, at a minimum, the FCC has to come up with a good reason for prohibiting these fleeting vulgarities.
Lets step back for a minute and take a look at what’s going on. If network television is more carefully regulated than cable TV or satellite radio, the question is why? It’s not the 1970s, anymore, when no one had cable and, if you did, you got about 15 cable channels. Now everyone has cable, hundreds of channels, and network TV and cable TV stations sit side-by-side. If the F-Word is thrown around on cable every three minutes, then what is the point in prohibiting it on network TV?
You don’t need a foul mouth to appreciate my argument. The Constitution does not demand good taste. It demands common sense. The distinction between network TV and cable TV is non-existent. That normally is enough for the Supreme Court to say that regulating one entity is unfair if a comparable entity is not similarly regulated. I may be a dummy, but a quick Google search shows that a serious constitutional law professor agrees with me. Michael Dorf, Esq. writes: “The rationale for content-regulation of broadcast television and radio has long been the scarcity of electromagnetic spectrum: Government must divvy up the airwaves among broadcasters and so, the scarcity rationale goes, it can insist on their use in the public interest, which includes restrictions on profanity. The rationale was dubious when announced and has become laughable with the proliferation of cable, satellite and internet alternatives to broadcast tv, all of which fall outside of the FCC’s regulatory reach.”
The Supreme Court will issue its ruling by June 2009.
Yours & truly,
Steve Bergstein