Reason: The FCC's Real F-Word: Freedom

The FCC's Real F-Word: Freedom

Why did the Supreme Court just uphold government censorship?

Steve Chapman | April 30, 2009


Anyone who has ever dealt with attorneys has come to the realization that the law does not always make perfect sense. Even so, it comes as at least a mild surprise to find the Supreme Court cheerfully authorizing the government to engage in censorship, as it did this week.



The First Amendment is admirably blunt in saying, "Congress shall make no law...abridging the freedom of speech." But never doubt the ability of a lawyer to turn clarity into mud. Recalling a case involving a raunchy routine by comedian George Carlin, Justice Antonin Scalia said, with evident approval, "that the First Amendment allowed Carlin's monologue to be banned."

Say what? As a matter of logic, that's like saying the 10th Commandment requires you to covet your neighbor's wife and ox. The Constitution was actually designed to prevent the government from telling people what they cannot say.

But the Supreme Court has a way of ignoring the obvious anytime there is a convergence of two things: broadcasting and bad words. So Tuesday, it ruled that the Federal Communications Commission was within its powers to punish TV networks for airing even a single F-word or S-word.

That was a departure from past policy, which made allowances for the unpredictability of live coverage. The FCC once disregarded expletives unless they were used repeatedly. But in 2004, it decided the youth of America could not withstand a single fleeting vulgarity. So it found Fox Television Stations guilty for airing profane outbursts by Cher and Nicole Richie.

What the court did not resolve is the question of how on earth the FCC can punish people for utterances of which it disapproves. The federal government, after all, may not outlaw all use of the F-word. It may not forbid you from saying it in your home, car, workplace, neighborhood diner or tavern, gym, local park, or place of worship.

It also may not outlaw foul language in movies, plays, concerts, musical recordings, websites, satellite radio programs, or even cable TV shows. Any such prohibition, you see, would violate your freedom of speech.

So where does the government get the power to punish someone for saying that word on Fox's telecast of the Billboard Music Awards? From Supreme Court justices who, decades ago, carved out a large loophole in the First Amendment rather than let free speech run amok on TV and radio. It said the FCC could impose rules that would never pass muster in any other medium, on the dubious theory that the airwaves were a scarce commodity requiring government rules on content.

Nowadays, broadcast outlets are only one of many ways that people find news and entertainment. Most people get their over-the-air TV channels not over the air, but via cable or satellite transmissions. But because the FCC insists on clinging to its antiquated regulatory authority, words that may be used on Channel 31 are illegal on Channel 32.

The excuse is protecting impressionable youngsters from irreversible coarsening. Scalia and his colleagues rationalized the FCC action by saying that "it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate."

But in much of the world that modern children inhabit, that behavior is already regarded as normal and appropriate. Most grade-schoolers didn't learn the bad words they know from Cher. They learned them from peers, just as their parents and grandparents did. In most homes, they know better than to mimic that behavior within earshot of their parents, regardless of whether they see it on TV.

Without the FCC's vigilance, parents who want to shield their offspring from random F-bombs would have to monitor their TV viewing. But if they have cable or satellite service, they already have to do that. And their bigger challenge is supervising Junior and Sissy when they surf the Internet, which most families welcome into their homes even though its content is unregulated.

That's right. Amazing though it may sound, the World Wide Web is a means of mass communication that operates without federal censorship, relying on users to depend on their own judgment, deploy their own filters or simply take their chances. If that approach works for a new medium, maybe someday we could try it on an old one.

Stupid people, the Constitution shouldn't be taken as written. We, the wise, will protect you from yourselves.

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Originally Posted by Winehole23

But in much of the world that modern children inhabit, that behavior is already regarded as normal and appropriate. Most grade-schoolers didn't learn the bad words they know from Cher. They learned them from peers, just as their parents and grandparents did. In most homes, they know better than to mimic that behavior within earshot of their parents, regardless of whether they see it on TV.

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True.

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Without the FCC's vigilance, parents who want to shield their offspring from random F-bombs would have to monitor their TV viewing. But if they have cable or satellite service, they already have to do that. And their bigger challenge is supervising Junior and Sissy when they surf the Internet, which most families welcome into their homes even though its content is unregulated.

That's right. Amazing though it may sound, the World Wide Web is a means of mass communication that operates without federal censorship, relying on users to depend on their own judgment, deploy their own filters or simply take their chances. If that approach works for a new medium, maybe someday we could try it on an old one.

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Right. Instead of the federal nanny watching over us, we can have freedom and leave the responsibility of raising children to the parents. And there remain societal penalties for not knowing when not to be vulgar.

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Originally Posted by Marcus Bryant

Instead of the federal nanny watching over us, we can have freedom and leave the responsibility of raising children to the parents. And there remain societal penalties for not knowing when not to be vulgar.

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Once we rely on the state to enforce informal social norms, the norms so upheld are already effectively dead.

Over-the-air broadcast traditionally has had less 1st Amendment rights than other media, so this is nothing new or groundbreaking. The reasoning is that the frequency bandwidth is limited, so that the government has to step in and ensure that the community is served.

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Originally Posted by spurster

Over-the-air broadcast traditionally has had less 1st Amendment rights than other media, so this is nothing new or groundbreaking. The reasoning is that the frequency bandwidth is limited, so that the government has to step in and ensure that the community is served.

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And the authority to censor speech derives from this how?

Also, how is the community served by this facially unconstitutional restriction of speech?

freedom of speech has never meant that anyone can say whatever they want on the media. If someone on TV says "black people and jews should all be rounded up and shot..." I don't think that would fly with the government either.

first amendment means that you have freedom of speech as long as it passes the government's muster.

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That's right. Amazing though it may sound, the World Wide Web is a means of mass communication that operates without federal censorship

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I wouldn't be surprised if some kind of government intervention happens in our lifetime. some countries already censor the internet, for example china. I believe I also read that europe censored some things... or maybe it was just england...not sure.

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Originally Posted by Bender

freedom of speech has never meant that anyone can say whatever they want on the media. If someone on TV says "black people and jews should all be rounded up and shot..." I don't think that would fly with the government either.

first amendment means that you have freedom of speech as long as it passes the government's muster.

I wouldn't be surprised if some kind of government intervention happens in our lifetime. some countries already censor the internet, for example china. I believe I also read that europe censored some things... or maybe it was just england...not sure.

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I don't care if someone gets on NBC live and starts mocking 9-11 victims by name; it's protected by our constitution. There's no such thing as freedom of speech if it doesn't cover the most controversial expression.

What regulates most speech, certainly commercially sponsored speech, is the freedom to not listen, to change the channel, to unsubscribe, to boycott, etc... NBC wouldn't air something like that primarily because they would lose a substantial amount of $ through loss of ad sales and a market cap hit to GE.

On a personal level, what regulates speech is freedom of association.

In both the commercial and personal, you have free speech and a free response. This is as it should be. As for children's ears, dare I say the parents should be responsible for what their children hear?

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Originally Posted by Marcus Bryant

True.



Right. Instead of the federal nanny watching over us, we can have freedom and leave the responsibility of raising children to the parents. And there remain societal penalties for not knowing when not to be vulgar.

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Originally Posted by Winehole23

Once we rely on the state to enforce informal social norms, the norms so upheld are already effectively dead.

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I think he was implying more like in the real world you cannot drop F-Bombs without risk of being fired or looked over.

Perhaps I have interpreted this wrong, but why did you assume The State would enforce social norms? Jumping the gun, eh? :lol

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Originally Posted by Marcus Bryant

In both the commercial and personal, you have free speech and a free response. This is as it should be. As for children's ears, dare I say the parents should be responsible for what their children hear?

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Why? In today's world, parents are not responsible for their offspring acting like a clown at school. Just as Americans should not look to a God for hope, Americans should not rely on parents but instead Government for their daily guidance.

:bking

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Originally Posted by FaithInOne

I think he was implying more like in the real world you cannot drop F-Bombs without risk of being fired or looked over.

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I understood MB.

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Perhaps I have interpreted this wrong, but why did you assume The State would enforce social norms? Jumping the gun, eh? :lol

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Your lack of subtlety is showing, LockBeard, and your grasp of the obvious seems to be a bit shaky. The FCC already enforces the social norm regarding profanity. That we rely on it to do so underscores the weakness -- not the strength of the norm.

For the record, I am for society -- not government -- enforcing mores.

"society ... enforcing mores"

How does that work? when "society" is 300M extremely diverse, if not polarized, members?

What to enforce, who are the specific enforcers, and what would be the penalties?

Who created "hate speech" ?

Instead of trying to derail every thread, why don't you start your own?

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Originally Posted by boutons_deux

"society ... enforcing mores"

How does that work? when "society" is 300M extremely diverse, if not polarized, members?

What to enforce, who are the specific enforcers, and what would be the penalties?

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The people.

Then again, judging by the inability of some people here to grasp this subtle, yet obvious concept maybe Uncle Sam as nanny makes sense.

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Originally Posted by baseline bum

I don't care if someone gets on NBC live and starts mocking 9-11 victims by name; it's protected by our constitution. There's no such thing as freedom of speech if it doesn't cover the most controversial expression.

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I'm in general agreement with the point. I do think the marketplace of ideas is a powerful tool in the First Amendment context and I think any government (but particularly an ever-changing government) is poorly equipped to engage in regulating expression. (Just a hunch, but I wonder if the FCC's claims in this case (or in today's remand of the fine in the Janet Jackson's nipple case) would have been as vigorously pursued by the same agency during the Clinton Administration).

But I do wonder about the absolutism suggested by this argument.

Isn't conspiratorial speech -- planning to kill someone, for instance -- equally controversial expression? Wouldn't an absolutist view of the First Amendment provide protection to those charged with inchoate crimes like conspiracy? What about fraud or defamation in the civil context? Should those alleged to have committed such torts be able to rely on the First Amendment as a complete defense to such claims?

I realize we're talking about somewhat different notions, but I think an absolutist view of the First Amendment has to deal with the consequences of being an absolutist view of the First Amendment.

I've never understood what is obscene about the word "shit"...

But I'm relieved that my children will be protected from hearing "shit" and "fuck" uttered on a TV screen. I would hate for such offensive garbage to tarnish otherwise decent programs such as Big Brother, Catch a Predator, Extreme Makeover, Ow My Balls, Let's All Laugh at Fatty, Charlie Sheen's Daily Whore, Inside Edition and Gossipy High School Date Rapists Hanging Out in Bars.

Thanks, Supreme Court, for protecting us from negative influences that could degrade our Utopian society.

"How does that work?"

"the people"

How does that work?

eg, I go up to up Hagee, and say: "Gluttony is immoral, if you ever bother to read the Bible (instead of making up your self-serving, money-grubbing FUD shit). I want want you to stop being a morbidly obese pig and negative example for all the morbidly obese suckers who believe your shit."

Hagee tells me to fuck off, and continues to be a morbidly obese pig.

How do I, as "society", enforce "gluttony is immoral" upon Hagee pig?

Or, I gather 1000s unfit overweight and obese people, and why not throw in smokers, and tell them they are stealing my tax dollars and jacking up my health insurance premiums by running up medical bills way above average over their lifetimes compared with fit people of lean weight?

Make up your own mores and tell how "society" enforces/penalizes it.

I have no idea where the First Amendment comes into play in that example, since: (1) all of what's postulated is entirely between private people and without any governmental involvement; and (2) the hypothetical speaker got to make his point, which is exactly what the First Amendment contemplates.

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Originally Posted by FromWayDowntown

I realize we're talking about somewhat different notions, but I think an absolutist view of the First Amendment has to deal with the consequences of being an absolutist view of the First Amendment.

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We're very far away from fleeting expletives in the examples you give, but your point is well taken.

IMO the speaker bears the consequences of his speech in any case. If he courts controversy he may receive the ire of the audience. If he slanders, threatens or conspires, the courts may take an interest. The state obviously has a countervailing interest in preventing crimes like slander, terroristic threat and conspiracies. If a countervailing state interest in preventing obscenity is discernible, it is harder IMO to see why it should trump the traditional liberty.

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Originally Posted by Winehole23

We're very far away from fleeting expletives in the examples you give, but your point is well taken.

IMO the speaker bears the consequences of his speech in any case. If he courts controversy he may receive the ire of the audience. If he slanders, threatens or conspires, the courts may take an interest. The state obviously has a countervailing interest in preventing crimes like slander, terroristic threat and conspiracies. If a countervailing state interest in preventing obscenity is discernible, it is harder IMO to see why it should trump the traditional liberty.

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Sure, but it would seem that the Court has concluded that the State has articulated at least a colorable interest in preventing obscenity. Presumably, the FCC's decision-making when it comes to fine-worthy conduct is administratively codified and known to those who are within that agency's governance. Arguably, such a codification of what is permissible or not constitutes a public policy choice that manifests a state interest in preventing things like obscenity, whatever its basis. I agree that the basis for the regulation wouldn't be likely to pass my personal sniff test, but I don't think the sort of absolutist view of the First Amendment that would wholly outlaw such regulations is tenable either.

In the end, the civil libertarian in me would agree with the propositions that: (1) such enactments would be largely arbitrary -- evidenced by the fact that they are clearly subject to substantial exceptions that stray far from a policy of prohibiting obscenity on television, since almost anybody can purchase hard-core pornography via a television or watch profanity-riddled programming; and (2) a standard of administrative or judicial review that affords any deference whatsoever to the government's reasoning in this situation would seem antithetical to the fundamental nature of the Speech Clause.

But those arguments are much different to me than saying simply that the First Amendment prohibits intrusion in this area.

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Originally Posted by boutons_deux

"How does that work?"

"the people"

How does that work?

eg, I go up to up Hagee, and say: "Gluttony is immoral, if you ever bother to read the Bible (instead of making up your self-serving, money-grubbing FUD shit). I want want you to stop being a morbidly obese pig and negative example for all the morbidly obese suckers who believe your shit."

Hagee tells me to fuck off, and continues to be a morbidly obese pig.

How do I, as "society", enforce "gluttony is immoral" upon Hagee pig?

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So you want the FCC to enforce your set of beliefs. Got it.

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Or, I gather 1000s unfit overweight and obese people, and why not throw in smokers, and tell them they are stealing my tax dollars and jacking up my health insurance premiums by running up medical bills way above average over their lifetimes compared with fit people of lean weight?

Make up your own mores and tell how "society" enforces/penalizes it.

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What the fuck does freedom of speech have to do with smokers?

"So you want the FCC to enforce your set of beliefs"

I didn't say that, you did. How does anyone enforce any "mores".

What the fuck does freedom of speech have to do with mores?

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Originally Posted by boutons_deux

What the fuck does freedom of speech have to do with mores?

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Check the OP. By punishing obscenity the FCC upholds a social norm and restricts speech.

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Originally Posted by boutons_deux

"So you want the FCC to enforce your set of beliefs"

I didn't say that, you did. How does anyone enforce any "mores".

What the fuck does freedom of speech have to do with mores?

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Mores as they relate to speech, dumbass.

cherry-picking your mores. Which other ones do want "society" to enforce/not enforce?

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Originally Posted by boutons_deux

cherry-picking your mores. Which other ones do want "society" to enforce/not enforce?

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Yeah, who needs to stay on topic?

Further, who cares so long as you are free to live your life as you see fit? Of course, if you didn't have anything to bitch about you'd probably off your miserable ass ASAP.

So we either have freedom, or we have croutons' arbitrary moral standards which are subject to the whims of whoever is in power; no real freedom whatsoever.

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Originally Posted by FromWayDowntown

Sure, but it would seem that the Court has concluded that the State has articulated at least a colorable interest in preventing obscenity.

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*Color*( as you surely know, FWD; ST may not) is one of the great weasel words in law.

E.g., http://www.lectlaw.com/def/c252.htm

Also, http://definitions.uslegal.com/c/color-of-law/

Or more generically, http://www.lectlaw.com/def2/u001.htm

From West's, http://www.answers.com/topic/colorable


Generally, colorability refers to some contrived pretext for an unjust plea.

Sometimes legal color carries the day. In this way, bullshit acquires a patina of respectability.

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Originally Posted by Winehole23

Sometimes legal color carries the day. In this way, bullshit acquires a patina of respectability.

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:lmao

Well said.

"we have croutons' arbitrary moral standards which are subject to the whims of whoever is in power; no real freedom whatsoever."

With all due respect, you're fucking stupid.

Nobody has answered how "society" (not the govt) is going to set and enforce "mores".

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Originally Posted by boutons_deux

Nobody has answered how "society" (not the govt) is going to set and enforce "mores".

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It already does. Freedom of association, home raising, peer pressure, letter writing, boycott, protest etc..

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Originally Posted by Winehole23

Generally, colorability refers to some contrived pretext for an unjust plea.

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I use it more in the sense of plausibility, but I understand your point. By suggesting that the FCC may have articulated a colorable basis to support enforcement of the regulations prohibiting obscenity, I'm not in any way suggesting that I agree with it or a judicial finding to that effect -- or that it should be given credence at all.

Just to be clear . . . .

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Originally Posted by FromWayDowntown

I use it more in the sense of plausibility, but I understand your point. By suggesting that the FCC may have articulated a colorable basis to support enforcement of the regulations prohibiting obscenity, I'm not in any way suggesting that I agree with it or a judicial finding to that effect -- or that it should be given credence at all.

Just to be clear . . . .

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It was, and you were. The pedant in me couldn't resist glossing the word. Once it was considered a perversion of justice, but long usage has made it a synonym for *plausible*.

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Originally Posted by boutons_deux

"we have croutons' arbitrary moral standards which are subject to the whims of whoever is in power; no real freedom whatsoever."

With all due respect, you're fucking stupid.

Nobody has answered how "society" (not the govt) is going to set and enforce "mores".

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yawn. You stupid fuck. And gee, might most people change the channel when Hagee comes on? In any event, you are free not to watch. Cut your throat already.