What the #%@$?

WHAT THE #%@$?
The Supreme Court is set to decide whether
Nicole Richie can say "sh*t" on national television.
And, believe it or not, the case could result in one of the court’s most important First Amendment decisions in decades.
By Robert Barnes

To count the ways that FCC v. Fox Television Stations is unlike any other case on the Supreme Court’s upcoming docket, start with single-name singers Bono and Cher. Add über-celebrities Paris Hilton and Nicole Richie. And throw in the likelihood that the F-word will reverberate off the Court’s stately marble columns, possibly from the lips of the justices themselves.
But the case over the government’s ability to ban “fleeting expletives’’ uttered over the airwaves is about more than celebrity. It holds the potential for a sea change in the Court’s First Amendment jurisprudence.
It has been 30 years since the Court considered the afternoon radio broadcast of the late comedian George Carlin’s “Filthy Words" monologue and decided that the government can police the nation’s airwaves without violating the First Amendment. In FCC v. Pacifica Foundation, the Court ruled that because of its "uniquely pervasive presence in the lives of all Americans," broadcasting has “the most limited First Amendment protection," and government has the right to restrict broadcast material in order to protect children who might be watching and listening.
But now the networks are arguing that not only is the Federal Communications Commission’s enforcement arbitrary and capricious, even the premise of the Court’s 1978 decision is no longer valid. Decades of Court-sanctioned government restrictions, the networks argue in briefs filed with the Court, rest on “moth-eaten foundations” in an age of hundreds of cable channels, the unlimited resources of the Internet, and the parent-empowering V-chip, capable of blocking broadcast programs.
“The ultimate constitutional question is enormously important, no question about that,’’ says Vincent Blasi, the Corliss Lamont Professor of Civil Liberties at Columbia Law School. The case before the Court, he notes, “frames the issue pretty nicely.’’
The current controversy started with Cher. In accepting an award at the 2002 Billboard Music Awards (broadcast on Fox), she first thanked all her supporters. “I’ve also had critics for the last 40 years saying that I was on my way out every year,’’ she continued. “Right. So fu*k ’em. I still have a job, and they don’t.’’
The live awards show blunders kept coming. Bono was so thrilled with his award at the 2003 Golden Globe Awards (broadcast on NBC) that he proclaimed it “really, really fu*king brilliant.’’ It was at the 2003 Billboard Awards that Richie, star of The Simple Life, told the audience it is “not so fu*king simple’’ to get “cow sh*t out of a Prada purse.’’
For years, the FCC had let such one-time use of obscenities slide. But organizations such as the Parents Television Council, which makes filing a complaint as easy as clicking on the group’s Web site, stepped up the pressure, and the FCC responded in 2004 by adopting more strict rules prohibiting fleeting expletives. Congress stepped in to increase the potential fine to $325,000 per violation.
A panel of the U.S. Court of Appeals for the 2nd Circuit struck down the new rules. It said the FCC had violated the Administrative Procedures Act by failing to “articulate a reasoned basis’’ for the policy change. And while it did not decide the networks’ First Amendment challenge, the majority said it was sympathetic to arguments that the FCC’s indecency test was “undefined, indiscernible, inconsistent and, consequently, unconstitutionally vague.’’
The government asked the Supreme Court to reverse the lower court’s ruling, contending the commission adequately justified its change in policy. The government also maintained that there was no need for the Court to take up the undecided constitutional issue.
But Fox’s lawyer, Carter Phillips, in his brief to the Supreme Court, asserted that the “regulation of ‘indecent’ speech necessarily implicates core First Amendment values, and the administrative law analysis simply cannot be divorced from the constitutional one.’’
Tim Winter, president of the Parents Television Council, says the networks’ questioning of the constitutional basis for FCC regulation shows “they not only want to push the boundaries; they want to obliterate them.’’
Blasi thinks it is possible the Court will decide only the administrative law question and send the case back for a fuller hearing on the constitutional issues. But either now or in the future, it is likely the Court will confront whether broadcast regulation arising from Pacifica makes sense in an age when more than 85 percent of households watch television on cable, which is not regulated by the FCC.
Pacifica does seem to me increasingly anachronistic,’’ says Blasi. “I doubt any serious proponent of indecency regulation really thinks that broadcast is uniquely threatening to children.’’
More likely, he adds, is a feeling that even in a fragmented society, “there’s still a reason to not want to legitimate the use of these words in this mainstream medium. It seems to me that’s the best defense of these regulations and probably the impetus for the regulation.’’
Whether that argument satisfies the Constitution is another matter.
“If broadcast really isn’t very unique, certainly in any material harm, such as exposure to children, if it’s only unique in that it has a kind of mainstream aura to it,” that might not be enough for justices worried about the First Amendment, Blasi says. “They might think, ‘Well, that’s a pretty dangerous rationale, when government starts proscribing individual word choice.’”
Robert Barnes has covered the Supreme Court extensively as a staff writer for
The Washington Post.

To view this story as it appeared in Columbia Law School Magazine (Fall 2008), please click here.