Broadcast Profanity and the “Right to be Let Along”: Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model?
Broadcast Profanity and the “Right to be Let Along”: Can the FCC Regulate Non-Indecent Fleeting Expletives Under a Privacy Model?
Edward L. Carter, R. Trevor Hall, and James C. Phillips, 31 Hastings Comm. & Ent. L.J. 1 (2008)
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The Supreme Court constitutionalized “f –” nearly four decades ago, and so in that sense the current Fox case–stemming from live broadcasts of the term uttered by, respectively, the global rock star Bono at the 2003 Golden Globe awards; the over-the-hill-but-in-denial actress Cher at the 2002 Billboard Awards; and the Simple Life denizen Nicole Richie at the 2003 Billboard Awards –can break no new ground. In fact, the cachet of the word has faded so greatly one wonders why individuals such as Bono, Cher, and Richie even bother to use it. Lexicographers have been wearing out the term since 1598, and even tedious law professors have mind-numbingly exhausted its possibilities in fits of adolescence. In the broadcast context, the late George Carlin forever linked himself with the prank of saying on the radio the “seven dirty words” one is not supposed to say on the radio
Given this history of dubious achievements in profanity, what is left to be at stake in the current appeal before the U.S. Supreme Court? First, it seems relatively clear that the U.S. Court of Appeals for the Second Circuit engaged in some convenient but doctrinally questionable jurisprudence by concluding (in a 2-1 decision) that the FCC had violated the Administrative Procedure Act in adopting a new rule regulating profanity. This portion of the Second Circuit’s opinion, holding that the FCC’s change in course was not “reasoned” in relying on the goal of preventing television consumers from absorbing the “first blow” of fleeting expletives, seems the most obvious candidate for Supreme Court focus. But speculation in the newspapers, at least, runs rampant that the Court will reach the constitutional merits of the profanity issue in what is being billed as “the first case on broadcast decency to go before the Supreme Court in 30 years.” If the Court gets past issues of administrative deference, in the current or a future appeal, then the core questions seem to become (1) what is the meaning of profanity in today’s society?; and (2) assuming profanity can be defined, how far may the FCC go in regulating its use on television?
This article proceeds to examine those questions in four substantive parts. Section II examines the history and contemporary status of profanity in society and law. Section III discusses in detail the rationales behind the First Amendment’s protection of expression, as applied to profanity. Section IV reviews the FCC’s evolution from regulating profanity as indecency to, in its current effort, regulating profanity primarily as profanity. Section V posits that, assuming profanity is expression, its broadcast into the home presents a unique legal posture due to the Supreme Court’s extreme solicitude to the privacy of the home.