Friday, June 22, 2012

Long live the fleeting expletive

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.

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