Analysis

(NOTE: 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.)

The Supreme Court spent a spirited hour Tuesday talking about dirty words, but nobody ever uttered one of them, so the Court’s performance had to be judged on the quality of legal prose and reasoning — hardly the stuff of titillation, even in a courtroom. With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia the only ones to tip their hand by enthusiastically promoting government authority to ban “fleeting expletives” on radio and television in daytime and prime time, the other members of the Court wandered somewhat randomly through alternative legal principles.  The blandness of the proceeding seemed captured in a closing question by Justice John Paul Stevens, as to whether the word “dung” would be indecent under federal communications law.

In the end, it seemed that the Federal Communications Commission may have to try again to explain why it thinks single utterances of the “F-word” and the “S-word” are indecent, and therefore unlawful on TV and radio at times when children may see and hear.  The problem may be how, in legal terms, the Court might fashion a ruling with that result — and nothing more — in the case of FCC v. Fox Television Stations (07-582).

The “big elephant in the room,” as Justice Ruth Bader Ginsburg referred to the possible First Amendment implications of the FCC’s current policy on broadcast “indecency,” did not appear likely to emerge into the forefront as the basis for a ruling against the FCC and in favor of broadcasters.  Justice David H. Souter, for example, seemed put off by the notion that, in every indecency case the FCC pursued, “we’re always going to be getting into the constitutional issue, expressly or covertly.”

If, indeed, the First Amendment is found to be out of the case, at least at this point, that left a question of whether the FCC has adequately explained its 2004 shift in indecency policy as to the “F-word” and the “S-word” when uttered in isolation.  The Second Circuit Court did not think so, and ordered the agency to look again.

 On Tuesday, it seemed possible that the Court’s majority would find the Second Circuit was somehow wrong, but that the Court might not want to flatly reverse because that would validate the current FCC policy without further justification, and it was not clear there would be a majority for that.  Could it be that the Court might simply affirm, but make the opinion so narrow as not to decide anything finally, until after the FCC reexamines its policy, and there is then another round in the courts? Or, indeed, might the Justices decide it was premature for them to have gotten involved?

After the argument, those options seemed closer to a potential outcome than either a fervent embrace of the FCC’s policy, as the Chief Justice and Scalia appeared prepared to make, or a sweeping denunciation of that policy, as no one on the Court seemed ready to indulge.  Because of the dominant role that the Chief Justice and Scalia played in the argument, it was possible to misread their views as the inclination of a majority.

Justices Samuel A. Alito, Jr., and Clarence Thomas, perhaps the most likely to be induced to join an opinion favoring the FCC, said not a word. Justice Anthony M. Kennedy, who often is sympathetic to free-speech arguments, asked only a few, unrevealing questions.  Justice Ginsburg said she could find “no rhyme or reason” for the way the FCC applied its ban in some broadcast situations but not in others, and she indicated it might make a difference to her that the existence of the Internet as an alternative source of indecency might change the legal equation on the FCC policy.  Justice Stephen G. Breyer wondered if smaller stations might not be able to protect themselves from the policy because they perhaps could not afford technology to “bleep” fleeting expletives. Justices Souter and Stevens were noticeably ambivalent.

Solicitor Gen. Gregory G. Garre, defending the FCC policy, basically had little work to do with two members of the Court so willing to provide justifications for the policy, and to thwart implied criticism from others on the bench.  One of his key points, though, was that, for all of the explosion in new media, broadcasting still remains the basic source of information, especially for people who do not want to be bombarded by profanity.  He argued that it would be remarkable if the Court were to invalidate the FCC policy outright, and alllow broadcasters to use “the F-word 24 hours a day,” perhaps with Big Bird dropping “the F-bomb” on “Sesame Street,” or someone doing so on “Jeopardy” or “American Idol.”

Justice Stevens led Garre into a concession that, if four-letter words were used jokingly in a way that “was very, very funny,” the FCC might allow it.  To that, Justice Scalia retorted: “Bawdy jokes are OK, if they’re really good!”

Garre was firm in his resistance, especially under questioning from Justice Ginsburg, that the Court should leave the First Amendment issues out of their consideration at this point.

For the broadcasters, Washington lawyer Carter G. Phillips was clearly the more animated of the two advocates, raising his voice at times for emphasis when reminding the Justices that they were pondering the meaning of a federal law that carries criminal penalties.  That was the premise of much of his argument that the Court could hardly avoid examining the First Amendment implications of this case.

When Chief Justice Roberts wondered why “the F-word” had attained such “force” in the language of the day, Phillips demurred, saying there was no “empirical evidence” to support the idea that it always has a sexual connotation, as the FCC has concluded.  Justice Scalia reminded him that people “don’t use ‘gollywoggle’ in place of ‘the F-word’,” but Phillips simply replied that for 20 years the FCC did not treat it as having special force, when used fleetingly rather than repetitively.

Phillips did not appear to fare well with an argument that, in applying the Administrative Procedure Act to determine whether the FCC had explained sufficiently its switch in policy, the Court should add some further requirement of justification because of the First Amendment implications.  A “raw APA standard,” he suggested, would probably allow the FCC simply to say it changed its mind because it got a lot of mail saying people were offended by fleeting expletives, but the First Amendment should require more.

When Phillips suggested that America has grown more tolerant of public uses of “the ‘F-word’,” Justice Scalia wondered rhetorically whether Phillip’s clients — broadcasters — “have had anything to do with that…There has been a coarsening produced by these shows.”  Just because people are more used to hearing the word, the Justice added, was not the same as being more tolerant of its use.

Justice Stevens, near the end, laid out the task that it appears the Court has before it: “In the last analysis, we are trying to decide what the word ‘indecent’ means….Do you think that…a fleeting expletive could not be indecent, but the same words could be indecent if they are repeated several times?”  It was not clear that Tuesday’s argument, by itself, provided an answer.

Posted in FCC v. Fox Television Stations, Uncategorized