COLUMN: The Law in Real Life: Case on FCC Fines for Fleeting Expletives Shows Court’s Antiquated View of Evolving Language

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Case on FCC Fines for Fleeting Expletives Shows Court’s Antiquated View of Evolving Language

Nov. 7, 2008

It used to be that an isolated “bad word” might simply get your mouth washed out with soap. But after U2 lead singer Bono referred to an award as “fucking brilliant” in 2003, ripples from the case made it all the way to the Supreme Court this week.

For many years, the Federal Communications Commission didn’t fine broadcasters for what are usually referred to as “fleeting expletives” — incidents on television in which a person, often on a live broadcast, utters a single word that isn’t generally permitted on network television. The FCC did impose fines for programming it considered indecent because of repeated profanities, and it won the right to do so in FCC v. Pacifica. But a poorly disciplined celebrity at a live event firing off a single word wouldn’t cause the FCC to fine the broadcaster.

That changed after the 2004 Super Bowl, in which halftime performer Janet Jackson famously exposed most of her breast for a few tenths of a second. The incident — an unwelcome spot of controversy marring the usually bland and unobjectionable landscape that is the Super Bowl halftime show — became a sort of rallying cry for cleaning up television. Despite the fact that Bono had flashed his F-word, so to speak, long before the Jackson incident, the FCC used his case, then pending, as part of a crackdown on “indecent” broadcasts.

The FCC went after the Super Bowl incident, the Bono incident and a similar awards-show moment starring The Simple Life’s Nicole Richie, who managed to use both of the words that wound up in front of the Supreme Court this week. We shall call them “the S word” and “the F word” from now on for the simple reason that that’s what the Supreme Court did Tuesday.

First Amendment Violation Questioned

In response to a variety of FCC administrative decisions, the 2nd U.S. Circuit Court of Appeals later ruled that the FCC’s decision to begin levying large fines on broadcasters for things that had never been seriously punished in the past was unfair because the agency had neither given any notice of the change in policy nor provided any reason for it. The Court didn’t officially reach the First Amendment issue of whether fining broadcasters for “fleeting expletives” was constitutional in the first place, but it’s fair to say that in a lengthy bit of dicta, it expressed grave doubts.

Tuesday’s argument, of course, forced everyone involved to make an important decision about the case before the argument even happened: Would the Supreme Court actually say the words at issue, and would the attorneys? Or would everyone tiptoe around them, giving tacit approval to the idea that they are somehow inherently harmful before an argument was even made?

In the end, nobody actually used any of the language at issue during the argument. “The S word” and “the F word” were the euphemisms of choice — and, on one occasion, “the F bomb.”

Based on published reports, Justice Antonin Scalia and Chief Justice John Roberts made it clear that they believe the FCC has the authority to fine fleeting expletives without a First Amendment problem. Justice Ruth Bader Ginsburg expressed much more skepticism about the constitutionality of fining for fleeting expletives, especially given what seemed to be selective enforcement.

If the First Amendment argument seemed to find limited sympathy among the justices other than Ginsburg, it’s harder to know what they’ll do with the more mundane administrative argument about whether the FCC went too far in abruptly changing course. In fact, it could rule that it doesn’t need to rule at all because the 2nd Circuit simply remanded the case to the FCC for a better explanation of its reasoning.

Court Has ‘Swear-ophobia’

But the oral argument itself and the fact that all sides carefully avoided saying the words that were actually at issue say a great deal. When particular words are at the center of a constitutional dispute, and when part of the issue is whether the context in which a word is spoken affects its legal status (as indecent or not, for instance), how does a full discussion of those words avoid mentioning them? This is not broadcast television; children are not present. Judging the indecency of words without being willing to discuss them is a bit like judging the indecency of photographs but refusing to view them. It raises the issue of the bizarre nature of swear-ophobia in the first place.

What, after all, is the harm of Bono saying that an award is “[F word]ing brilliant” instead of literally saying it’s “F-wording brilliant”? The FCC claims that the F word has a sexual connotation no matter what because of its origins. Justice Roberts claimed that what makes the F word shocking is its association with sex. That is, frankly, absurd. What makes the F word shocking is the very act of referring to it as the F word. When Bono uses it — or, as the 2nd Circuit had noted in its decision, when Dick Cheney uses it with Patrick Leahy in saying “[F word] yourself” — there is no sexual connotation. It’s used for emphasis. Sex is the furthest thing from anyone’s mind.

Even more perplexing is this: The FCC’s entire problem is avoided if the network “bleeps” the word, but most kids still will know what Bono said. Those kids will, in effect, still have “heard” it. They get the message: Bono likes those words your parents tell you are not nice to say. Would parents want their kids running around saying, “F bomb you” or “bleep you” or “frig you” or “frick you” or any of the other ways kids invariably get around these things?

In a way, the case’s fate seems sealed by the very insistence of everyone involved on refusing to speak any of the words at issue. The Court followed the theory under which harm is done to everyone simply by combining certain letters in certain ways and speaking them aloud, and if that’s the case, Bono is in big trouble.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.