‘Indecency’ has a good day in court

In case you missed it, everything about this court ruling was encouraging — especially the judges’ rationale.

If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.

That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.

Although the case was primarily concerned with what is known as “fleeting expletives,” or blurted obscenities, on television, both network executives and top officials at the Federal Communications Commission said the opinion could gut the ability of the commission to regulate any speech on television or radio.

The principal question before the 2nd Circuit dealt with the broadcast of “unplanned” obscenities, such as those people might hear during a live event. (Apparently, Bono helped get the ball rolling in earnest in 2003, when he uttered a vulgarity on NBC during the Golden Globes awards.)

The Bush administration has gone to some lengths to crack down on obscenities, and yesterday’s ruling basically sends administration officials back to the drawing board. The FCC now has to rewrite its indecency policy, and FCC Chairman Kevin Martin said that it was “doubtful” that the agency would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.”

But it was Bush’s and Cheney’s role in the ruling that made all of this so entertaining.

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.

“We find that the F.C.C.’s new policy regarding ‘fleeting expletives’ fails to provide a reasoned analysis justifying its departure from the agency’s established practice,” said the panel.

It’s not just an academic point. Last July, the president was overheard chatting about Hezbollah with British Prime Minister Tony Blair when Bush, unaware of the live microphone in front of him, said, “See the irony is what they need to do is get Syria to get Hezbollah to stop doing this shit and it’s over.” Bush’s comments were noteworthy enough to be broadcast widely on TV and radio stations, usually without “bleeps.” Apparently, when the news story is about the president using a certain controversial word, the media is less inclined to censor the word itself. (The FCC received two dozen complaints from Americans offended by the news broadcasts.)

In court, this helped lead to a discussion in which the FCC struggled to explain the precise standards it would use to regulate broadcast speech. The court was unimpressed.

“We are skeptical that the commission can provide a reasoned explanation for its ‘fleeting expletive’ regime that would pass constitutional muster,” said the panel in an opinion written by Judge Rosemary S. Pooler and joined by Judge Peter W. Hall. “We question whether the F.C.C.’s indecency test can survive First Amendment scrutiny.”

And just think, Bush’s potty mouth inadvertently helped deliver a victory for free speech.

Heh.

Bush finally does something good for once.

  • It’s not 1954 anymore. Leave it to Beaver went off the air long, long ago, and it’s well past time for the FCC to catch up. Everyone else has, even those knuckle-draggers, GOP political figures.

  • I always thought that the FCC policy was a deliberate attempt to cow the broadcasters into seeking favor with the Administration. It’s one thing if something with planned foul language is deliberately broadcast – it’s quite another when it is spontaneous and accidental during a live event. And it is something else when the FCC claims vast discretion in which such “accidents” it will punish and which it won’t. It can only have one purpose only – and that is a political one.

  • I read the article this morning and hoisted my coffee skyward to celebrate the victory. I then resolved myself to the inevitable F.C.C. appeal… as Chairman Martin indicated, it’s just a matter of “to whom” at this point. When this finally reaches The Supremes, the F**kwit-In-Chief (you may consider that a fleeting use of the term) has stacked the court rightwards enough that it’s hard to imagine an F.C.C. victory there being anything other than a foregone conclusion.

  • didn’t Bush campaign on the promise of bringing “honor back to the White House”?

  • And let’s not forget Cheney’s contribution to this conversation and the court’s ruling… That, too, was broadly known. To the point where, when Cheney said — to highschool students, yet! — that his relationship with Harry Reid was better than with Patrick Leahy, he got a a big laugh. Which means the students understood, perfectly, just what he was talking about.

    At least, Bush was talking to another adult and thought himself off-air. Cheney, OTOH, must be mighty proud of his potty mouth and totally scornful of decorum to have mentioned it among kids.

  • the adolescent in me shouts, “fuck, yeah!”
    but on a more serious note, isn’t it time adults got to act/speak/read/hear like adults and not have to have pablum spooned to us through the religious right “how will it affect the children” filter?

  • Ah, I’m sure L. Brent Bozo III is foaming at the mouth (he really does!) at this one. There’s nothing more fun than offending the easily-offended.

    They should have also quoted Bush’s on-air agreement about the reporter who he and Cheney decided was “an asshole… big-time.”

    I guess we’re really lucky that our version of the Adolf and Heinrich Show are so stupid all they can do is shoot themselves in the foot.

  • Isn’t this more of the Nixonian maxim that if the president does it it is therefore legal? If the president flashes a nipple at the SuperBowl haltime show it is legal.. Janet Jackson doing so wasn’t legal because she wasn’t presidnet at the time, though maybe after this ruling it will be found legal if we have proof W has shown his nipples in public before.

    I’d like to see this argument used so that way we could secretly tap the phones and e-mail communications of the White House, because if the president can do it it therefore must be legal for the rest of us to do it as well.

  • Comments are closed.