Tuesday’s Supreme Court ruling (link opens a .pdf document) against even fleeting profanities on broadcast TV is being hailed by right-wing TV watchdogs as a victory for family values, but it’s clear that the decision does not really put to rest the issues at hand. As Variety reports, the ruling essentially tosses the ball back to the appeals courts, leaving undecided the larger First Amendment questions (should the FCC really have the authority to regulate content on broadcast TV?) and any recognition of how much the TV landscape has changed since the FCC started punishing networks for airing (even in passing, on awards shows and such) words from George Carlin’s notorious list.
The old standards used to apply because broadcast TV was a “uniquely pervasive” medium that made use of the public airwaves. Now, the broadcast channels are just a handful of options in the 500-channel universe, and they have to compete (unfairly, network execs will say) against cable channels that, because they don’t use public airwaves, are free to air unregulated and uncensored content. But the court also didn’t address whether the FCC should be regulating content in the first place. Networks complain that FCC sanctions often seem arbitrary, while the FCC commissioners argue that to issue an explicit set of don’ts would amount to prior restraint, which clearly would violate the First Amendment. That leaves only the Potter Stewart standard (named for the former Supreme Court Justice who defined pornography by saying only, “I know it when I see it”), which seems no fairer, and which may also violate the Constitution.
The chilling part of the decision came in some of the arguments in Justice Antonin Scalia’s majority opinion. He wrote, “Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning.” Does that extend to incidents like Bono’s Golden Globes acceptance speech (one of the events at the center of this whole flap), where his use of the phrase “f—ing brilliant” clearly had no sexual connotation at all? (See the U2 speech in the video above, which contains one fleeting NSFW word, obviously.) Scalia also wrote that the FCC is justified in punishing the use of fleeting expletives because “children mimic behavior they observe.” That seems to open the door for the FCC to regulate any content at all that children might imitate — violence, sexuality, smoking, wearing too much makeup when you’re a dude competing on American Idol — anything. This is a path neither the networks nor the government should want to embark upon. Yet this decision ultimately passes the buck back to lower courts, meaning another confrontation over these issues is inevitable. I doubt the senators will be thinking much about media and First Amendment issues when it comes time to grill whoever President Obama nominates to replace David Souter on the bench, but they should.