By Steve Bergstein
Planet Waves Contributing Editor
from his civil rights blog Wait a Second
The media seems disappointed that the Supreme Court did not hold in the “fleeting expletives” case that FCC rules prohibiting profanity on network television inherently violate free speech. Instead, the Court said that the FCC’s rules allowing the agency to punish the networks for unanticipated foul language from celebrities violate the First Amendment’s requirement that we receive fair notice of the rules before the government can punish us.
The case is FCC v. Fox Television, decided on June 21. It all started when Cher, Bono and others used the F-word and other profanities on television during award ceremonies. This was unscripted. The FCC reprimanded Fox Television for this. It also fined ABC Television over $1 million. These punishments are overturned by a unanimous Supreme Court.
We all know that the networks cannot allow premeditated cursing on television. When George Carlin did this in the 1970s on WBAI radio (the “7 dirty words”), the FCC punished the station, and the Supreme Court said that the FCC may impose these rules on the public airwaves.
At some point, however, the FCC decided that “fleeting expletives” also violate FCC rules. However, it was not clear to the networks that the rules had changed. When the FCC therefore sanctioned Fox and ABC Television, it did so without providing fair notice that “fleeting expletives” run afoul of the rules. That violates the First Amendment.
A side legal note: the Supreme Court notes that Fox Television was not financially sanctioned. The FCC said this should get the agency off the hook; sort of a no-harm-no-foul. But the Court does cry foul. The FCC could use the non-monetary sanction against Fox in the future in imposing future penalties. In addition, the Court notes that the sanction caused Fox the suffer “reputational injury.” The Court explains:
As respondent CBS points out, findings of wrongdoing can result in harm to a broadcaster’s “reputation with viewers and advertisers.” This observation is hardly surprising given that the challenged orders, which are contained in the permanent Commission record, describe in strongly disapproving terms the indecent material broadcast by Fox. Commission sanctions on broadcasters for indecent material are widely publicized. The challenged orders could have an adverse impact on Fox’s reputation that audiences and advertisers alike are entitled to take into account.
Is this reasoning realistic? Does anyone hold it against Fox that someone used foul language on television? Who knows. But this language may be useful in other contexts, i.e., employment discrimination cases, where the plaintiff suffers no monetary damages but instead points to other harms that may either hurt the plaintiff down the road or cause reputational harm among colleagues or future employers.
Another side note: it is obvious that Justice Kennedy is not comfortable using the F-word (among other profanities) in published Supreme Court rulings. He instead writes “F***” and “S***.” My research shows that the Supreme Court has said “fuck” in nine cases, most recently in 1993. The first time they did this was in 1971, in holding that an anti-war guy could walk through a California courthouse with a jacket that said “fuck the draft.” The first time any federal court used the F-word was in 1966, when a district court in California ruled on whether the government could prosecute a “nudie” peep show. In case you were interested.
A final side note: Justice Ginsburg would overturn the George Carlin case that said the FCC may prohibit obscenities on network television. She says that case, FCC v. Pacifica Foundation, 438 U.S. 726 (1978), was wrongly decided back then, and that it makes no sense today in light of technological advances. She probably means that with all the cable channels we have today, there is no functional difference between the public (no cursing allowed) and private airways, where profanity is rampant. Any 10 year-old with a remote control could tell you that.
Steve is a civil rights attorney practicing in New York. His blog “Wait a Second” is intended for other lawyers so they have a clue.
BR, Slutting edge? You must be referring to my law school conditioning… I’ve always thought that brought out the bitch in me, not the slut. Wait, wait… I can’t tell the difference.
JannKinz
Jann, you have truly been on the cutting/slutting edge. You Go, Girl!~
Eric and Steve, please understand that my twisted humor is not meant to belittle the issues at hand. I do take them seriously (in spite of my law school conditioning) but sometimes it is only the humor that keeps me sane. No intention of offending; just pushing it. Thanks for all you do.
JannKinz
BR, Absolutely on the conference to engorge, I mean, engage the issues.
Sidestories: When I was at Albion College, back in the era of the Uranus-Pluto conjunction in Virgo, I did to “fuck” things that annoyed the adults.
My father collected antique cars, and had a 1929 Model A Ford. I decided that he needed an embroidered patch in blue with the word “Fuck” in Ford script. I thought he would shit when I gave it to him. (I was all of about eighteen years old.)
After my freshman year in college, the rather uptight park ranger/cop father of my best friend from high school asked me what I had learned in my first year of college. I answered “I learned how to say ‘fuck’ without blushing.” He almost climbed on top of the refrigerator. But, ya know, I wasn’t thrown out the door nor was I silenced for a day.
JannKinz
lol, Jann
the logo will be great–we should have a weekend conference filling out all the ramifications of this issue, don’t you think>
My favorite book is “The Rape of the Late, Great A.P.E.” (APE meaning “American Puritannical Ethic). This book has an entire page with just “fuck” typed over and over and over.
One further observation about being offensive: often it is the truth that people find offensive.
“I never did give anybody hell. I just told the truth and they thought it was hell.”
Harry S. Truman
JannKinz
“…a standard of situational appropriateness, with a preference to push what we think of as accepted social boundaries.” Hear, hear!!! Thank you, Eric.
This is bringing back vague recollections of the infamous SCOTUS cases on pornography and obscenity, those pithy phrases from the mid-1960s and early 1970s: “I know it when I see it.” (Potter Stewart); “patently offensive”; “prurient interest”; and the oft-quoted “no redeeming social value.” Unfortunately, much is left to “local community standards”, now seemingly defined by nation-wide rampant uber-conservatism and censorship.
Time to push those false boundaries.
JannKinz
How about just “FUCK BOXES”? Or maybe that would be way too ambiguous, since one wouldn’t know if “fuck” was a verb or an adjective, and it would imply that boxes are the choice as the fuckee. Same reasoning would apply to “Fuck Vaginas”, and it would also give those who are capable of actually saying “fuck” and are anti-vaginal a “slogan.” No, wait – capable of saying fuck but being anti-vaginal may be an oxymoron.
Okay, I agree and vote for “Fuck Fuck Boxes”, and we can design a tasty logo incorporating the “FFB”, possibly with first “F” having a stylized penis as the upright bar, the second “F” with the top bar as a stylized penis, and the “B” flat on its “back” and resembling open thighs. Maybe the stylized penii could be penisbots…
JannKinz
OK, let’s have a vote. Should our jackets say FUCK VAGINAS or FUCK FUCK BOXES?.
lmao
Thanks a million Jann and stormi.
I have read what I could of Eros Denied. A little too scholarly for me, but really appreciated your introduction to it, Eric, and always, thank you.
I vote for
Fuck Fuck Boxes in honor of the delicate sensibilities of our elected officials. And because they may not understand it and think that someone is opposing BOXES for some reason perhaps. IQ does now seem to be in question concerning many of those who have attained public office starting with the late great W.
“fuck box” is the one association (i’ve found so far) to the vagina or vulva. may be appropo to michiganislature’s understanding of it tho…
i actually have that book, “the F word”, (one of my favorites in the English language) written by Jessie Sheidlower (2009), “recognized as one of the foremost authorities on obscenity in English” and Editor at Large for Oxford English Dictionary (at time of printing at least). he cites earlier uses of the word in print in the US as a legal case “heard in the Supreme Court of Missouri in 1846, concerned a man who had been accused of having sex with a mare, and who successfully sued for slander” (p. xix). Apparently the word was used to “convey the imputation” of “carnal knowledge of a mare” and the word used was “unknown to the English language” at the time so “not understood by those to whom it was spoken” – or so goes the the court records, which continue to acknowledge that basically the “modesty of our lexicographers restrains them from publishing obscene words” but that just because they weren’t in a dictionary at the time didn’t mean they didn’t exist and people didn’t understand them. There was another case of mistaken slander/fucking in an 1865 case, Supreme Court of Indiana, but really “very few in the late nineteenth and early twentieth centuries” (p. xx). the book is essentially a reference dictionary for variations on the word, with a bit of context at the beginning, and no index – haven’t come across anything in relation specifically to employment/rights yet …
The issue of offense is ridiculous. My standard training for writers and editors is: since there is someone out there who will be offended by anything, “offense” is not a value or frame of reference. It is entirely subjective.
There must be others that are more realistic, or more pragmatic, and we must factor that in when it comes to free speech issues. As an editor, I rely on a standard of situational appropriateness, with a preference to push what we think of as accepted social boundaries.
It verges on insane that the word ‘fuck’ is still being regulated. Soon I will publish the chapter on “forbidden words” from Eros Denied by Wayland Young. He documents that the reason ‘fuck’ is considered a swear word is because it was banned. Prior to that time, it simply meant what it’s supposed to mean — fuck. Once it was banned, it began to take on all of its other expletive and slang meanings.
Let’s see if I understand this gem of legal reasoning. It’s not about the alleged profanity per se; it’s about the media not knowing the rules and the FCC changing and/or not telling the rules. Okay. Next. ABC got nailed for mega bucks and Fox got wrist slapped. Why the difference? Oh, wait it doesn’t matter because Fox suffered “reputational injury.” And its reputation was sullied because of unscripted use of fuck. Begs the question: how can a crappy reputation be injured? By use of profanity? I’d say the profanity on Fix is everything they broadcast, not just unscripted fucks.
I can only wonder how the Supremes would rule on the use of the word “vagina” in relation to the “decorum” of the floor of the Michigan legislature? Maybe the answer is to wear jackets that say “Fuck Vaginas”…
Thanks, Steve. And as ever, thank you, Eric.
JannKinz
PS: Harper Collins published an entire book on “fuck” – appropriately entitled “The F Word.” Necessary reference along with a dictionary.
That is interesting — Steve’s primary practice area is employment rights. I will ask him.
Great update. The ruling’s future implications may actually support in the future an individual’s rights in employment situations, if I understood that correctly.Thanks.