NEW YORK, NY — Thanks to a recent federal court decision, word on the street has just gotten a little more frank and spontaneous. Strike that. Word on the street has stayed the same – but word on the radio and television has just legally taken a more earthy turn, regardless of what fine crazy Federal Communication Commission chairman Kevin J. Martin thinks about the matter.The ruling, handed down by the 2nd U.S. Circuit Court of Appeals on Monday, is not likely to make the Bush administration happy, given its thus far limited successes in the areas of obscenity prosecution and restriction. Martin, who has aggressively promoted the president’s policies by levying increasingly hefty fines for an increasingly broad category of alleged violations, says the agency has not yet decided whether or not to appeal the decision before all appeals court judges or have the issue resolved by the Supreme Court.
Martin may well be smarting from the language and tone employed by court paperwork associated with the case, which primarily focused on “fleeting expletives” spoken unexpectedly and spontaneously, as has happened during profanity laced utterance from such luminaries as U2’s Bono, vice president Dick Cheney, and president George W. Bush.
The court ultimately instructed the commission to rewrite its indecency policy, but warned that it was “doubtful” that the FCC would “adequately respond to the constitutional and statutory challenges raised by the networks.”
Many, including FCC officials, network executives, and free speech advocates, contend that the court ruling could effectively mean that the FCC is unable to regulate broadcast television or radio speech. Such certainly appears to be the opinion of Martin, who told the Associated Press that it “makes it difficult to go forward on a lot of the cases that are in front of us.”
Martin did not indicate whether part of the difficulty would be in providing the court with an explanation of how the agency’s policies are not “arbitrary and capricious,” as it has requested.
At issue had been two Fox Television programs. On December 9th, 2002, Fox presented the Billboard Music Awards, during which performer Cher burst out with an enthusiastic, “Fuck ‘em!” The following day, reality show icon Nicole Richie asked “Have you ever tried to get show shit out of a Prada purse? It’s not so fucking simple.” Both quotable quotes were declared indecent by the FCC, which chose not to issue any fines but emphasized that the infamous “F-word… inherently has a sexual connotation” and is therefore forbidden.
Reactions are unsurprisingly wide ranging, with Fox Broadcasting declaring that “government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment.”
Commissioner Michael J. Copps disagreed, insisting that the ruling was a disappointment to millions of parents and in no way changes the agency’s legal rights and responsibilities. He warned “any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes” that they “would be making a huge mistake.”
Nonetheless, the 2nd Circuit Court concluded that the justifications for the agency’s get tough policies were “divorced from reality,” especially given that the world’s television audience had heard the President of the United States tell British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit,” thus showing how mainstream profanities have become.
Martin disagrees, insisting that “It is the New York court, not the commission, that is divorced from reality for concluding that the word ‘fuck’ does not invoke a sexual connotation.”
In what will likely only be the beginning of legal opinions on the matter, the justices pointed out that profanities are often spoken in non-sexual contexts and for non-sexual reasons, and that “In recent times, even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”
Indeed, chances are slim that Vice President Cheney was flirting when he told Senator Patrick Leahy to “fuck off” three years ago on the floor of the United States Senate.
