Tuesday, April 28, 2009

More Bad Business from the Supreme Court on the FCC and the First Amendnment

Another grim, outrageous, but not really surprising ruling on the First Amendment from the US Supreme Court today, which held 5-4 that fleeting or single-word expletives on broadcast television and radio shows could be fined millions of dollars.

A lower U.S. Appeals Court in New York had found the FCC fines "arbitrary and capricious," by Justice Scalia, writing for the Supreme Court majority, reasoned that "the F-word's power to insult and offend derives from its sexual meaning."

So? Whatever the psychological wellsprings of its semantic power, what counts is whether any Federal agency has the right to fine any broadcaster or anyone, any amount of money, for saying the word "fuck" one or a dozen times, sotto voce or with trumpets blaring, given that the First Amendment to our Constitution says "Congress shall make no law ... abridging the freedom of speech". The linguist Scalia and his four similarly minded colleagues on the bench not only are showing utter contempt for the First Amendment, but are violating their own sacred conservative principle of not "legislating from the bench" with this dangerous ruling.

But it was not unexpected, and indeed has roots in unfortunate Supreme Court rulings throughout the 20th century, including the George Carlin "seven dirty words" case in the late 1970s, in which the Supreme Court upheld the FCC's censure of WBAI Radio for broadcasting Carlin's hilarious routine. Ironically, Justice John Paul Stevens wrote the majority opinion for that benighted ruling. Today, Stevens was in the minority, objecting that the fines for sexual and excretory expressions in broadcasts make no sense given that television is filled with ads about "battling erectile dysfunction" and helping people who "are having trouble going to the bathroom."

Like Justice Oliver Wendell Holmes, Jr., who soon came to regret the use of his "clear and present" danger restriction on the First Amendment to further suppress speech and press, Stevens may now see the error in his support of the FCC attack on WBAI Radio in the 1970s.

But the danger to our freedoms won't go away, whatever the majority and minority views on any Supreme Court, until some Supreme Court rules the FCC itself in obvious violation of the First Amendment. A government agency that keeps track of broadcasting bandwidths to make sure they don't interfere with one another, technically, by being too close on the radio wave spectrum is fine, though decreasingly needed given the unlimited bandwidth of Internet radio. But a government agency that seeks to dictate to us whether we can hear the words "fuck" and "shit" - you'll forgive me if I don't use the ridiculous "F-word" and "S-word" appellations, since everyone knows just what they mean, anyway - but a government agency that seeks to restrict and punish expression of any of that is a gross violation of our Constitution.

Until we as a society recognize and act upon that very obvious and crucial fact, we can expect more bad business and conduct from the FCC and the U.S. Supreme Court.

My 2005 Keynote Address on "The Flouting of the First Amendment" follows, for some historical context ...

Transcript of The Flouting of the First Amendment
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