Geoffrey R. Stone: What the F***?

The Supreme Court today 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.

In 2008, the United States Court of Appeals ruled that the FCC lacked statutory authority to apply its rule to such fleeting (rather than scripted) expletives. In 2009, the Supreme Court, in a 5-4 decision, held that the FCC did have statutory authority for its rule, but sent the case back to the Court of Appeals to decide if the rule was consistent with the First Amendment. In 2010, the Court of Appeals unanimously held that the rule was unconstitutionally vague because broadcasters could not reasonably know when the FCC would or would not apply the rule. The Supreme Court again agreed to hear the case and in today's unanimous decision it avoided the central question and held instead that the FCC could not constitutionally apply its fleeting expletive rule to these broadcasters because it hadn't given them sufficient notice in 2002 that it would do so. I'll bet you never thought f*** and s*** could be so boring.

So, what's the real significance of the case? It is this: Throughout its opinion, written by Justice Anthony Kennedy, the Court repeatedly wrote f*** and s***. It declined to acknowledge the actual words at stake in the controversy. This is depressing. In 1971, when the Court held in Cohen v. California that a state could not constitutionally make it a crime to use the word fuck in public, it used the word fuck. In 1978, when the Court upheld the FCC's rule banning the use of "indecent" words over the airwaves, it quoted in full George Carlin's monologue, including the words shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Those words, according to Carlin, were the "ones that will curve your spine [and] grow hair on your hands." When the Court of Appeals decided this very case (twice), it had no qualms about using the actual words that were at issue in the case. But Justice Kennedy had to use ***s to avoid saying fuck.

This is not what lawyers and judges do. Lawyers and judges deal with the real world. They deal with murder and greed and rape; they deal with enhanced interrogation and brutality and gruesome wounds; they even deal vaginas (unlike some legislators these days). It is their responsibility as professionals to deal in a mature and straightforward manner with all sorts of unpleasantness. A lawyer representing a person accused of child sexual assault cannot refuse to confront the allegations because they make him squeamish. Like a doctor treating a mutilated child, they have to deal with the world as it is. Especially in a First Amendment case, lawyers and judges have to be willing to say the words out loud, even if it makes them uncomfortable. To do otherwise is to deny the realities of the case before them. It is to put their own sensitivities above their obligations to their clients and to the law. It is, in short, unprofessional.

When Melville Nimmer represented Paul Cohen in the Supreme Court in Cohen v. California, he knew he had to say the word fuck in the Supreme Court for the first time in its history. He also knew that Chief Justice Burger did not want this to happen. Sure enough, when Nimmer approached the lectern to make his argument, Burger leaned over the bench and instructed Nimmer, "Counsel, we are familiar with the facts of this case. You can dispense with them and move directly to your legal argument." To which Nimmer replied, "Of course, Your Honor. Suffice it to say that my client was convicted of disturbing the peace for wearing a jacket in public bearing the words "Fuck the Draft." It was at that moment that he won his case, because lo and behold the walls of the Court did not crumble.

In the context of the ongoing debate about the Catholic Church and the rights of women, I recently heard a nun quoted to the effect, "Christianity is not for sissies." Neither, I might add, is freedom.

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