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.