Geof Stone on SCOTUS Ruling on Fleeting Expletives
Yesterday, the Supreme Court decided Federal Communications Commission v. Fox Television Stations. The issue was the constitutionality of an FCC rule prohibiting the use of "indecent" language over the airwaves. In 1978, in a case involving a broadcast of George Carlin's famous "Filthy Words" monologue, which mocked the FCC for banning precisely those words, the Court, in a sharply-divided decision, held that the FCC's rule was constitutional.
Much has happened since 1978, however, and although the use of such words is still forbidden on radio and on broadcast television, they are now used pretty much everywhere else, including cable television, movies, pop music, and the internet. The question is whether what once seemed a credible policy designed to protect children and hyper-sensitive adults from hearing naughty words is now nothing more than a quaint relic of a bygone era and, more dangerously, an open invitation to discriminatory enforcement by the FCC.
The case decided yesterday involved several "fleeting" expletives. In one incident, Cher exclaimed during an unscripted acceptance speech at the 2002 Billboard Music Awards, "I've had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** 'em." The following year, at the same event, Nicole Richie made the following unscripted remark while presenting an award: "Have you ever tried to get cow s*** our of a Prada purse? It's not so f***ing simple." A third incident occurred at the 2003 Golden Globe Awards, when Bono, upon winning the award for Best Original Song, exclaimed, "This is really, really, f***ing brilliant. Really, really, great." For these and similar incidents, the FCC levied fines on broadcasters totalling some $8 million.