If you're in front of a microphone and you feel a fleeting expletive coming on, you better say it now, before the Supreme Court says you can't.
Last week, the court heard oral arguments in FCC v. Fox Television (07-582), a case that will decide whether TV stations can be fined for broadcasting fleeting expletives and other "indecent material . . . directly into the home during the time of day when children are likely to be in the viewing audience."
According to federal law, "Whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined … or imprisoned not more than two years, or both" (18 U.S.C. § 1464). In the past, the Federal Communications Commission used this power to fine stations for repeated on-air obscenity, as in the famous George Carlin "7 Dirty Words" case.
In 1978 the Supreme Court ruled that George Carlin's 7 dirty words were not ready for prime time, or any other time
But recently the agency began dinging stations for any off-hand f-word, calling its impromptu use by Bono at the 2004 Golden Globe awards "shocking and gratuitous." The networks went to court to protest the fines, and although the Second Circuit ruled last Spring that the occasional, nonliteral use of F-words was not indecent or obscene, the FCC wasn't ready to pollute the airwaves with f#&% and s*** and appealed this decision to the Supreme Court.
Presenting the case for the FCC, Solicitor General Gregory Garre asserted in oral arguments that the words banned by the commission are always indecent. Regardless of the speaker's intent, "the F-Word is one of the most graphic, explicit, and vulgar words in the English language." He added that even though "it certainly can be used in a non-literal way. . . as Cher used it to say 'F them' to her critics . . . it inevitably conjures up a core sexual image."
Garre acknowledged that the F- and S-words might be useful, but assured the court that people had other media options to satisfy their daily expletive requirements: "Americans who want to get indecent programming can go to cable TV, they can go to the Internet."
Internet or not, the FCC doesn't penalize every F-word it comes across. Justice Ginsberg questioned why the commission hadn't blinked over the repeated, intense use of the F-word in a broadcast of "Saving Private Ryan," while it labeled as obscene the same word in a documentary on the history of the blues.
Chief Justice Roberts saw nothing wrong with this: "It's one thing to use the word in, say, 'Saving Private Ryan,' when your arm gets blown off. It's another thing to do it when you are standing up at an awards ceremony."
Justice Stevens, wanting to know if F-words could also be permitted in something besides the high seriousness of a Spielberg war movie, asked if it was "ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?" And Justice Scalia replied, "Bawdy jokes are okay if they are really good."
Justice Scalia likes a bawdy joke if it's really good, but will he ban obscene gestures from the media?
And despite the general laughter that this exchange elicited, Gen. Garre insisted that children's ears must be kept pure, even if it means that consenting Supreme Court justices can't have their bawdy jokes: "I think you can recognize the potentially greater harmful impact on children where you have celebrities using particularly graphic, vulgar, explicit, indecent language as part of the comedic routine during a show that children are comprising a substantial part of the viewing audience."
Garre actually predicted that allowing the networks to broadcast expletives would lead to "Big Bird dropping the F-bomb on Sesame Street."
Perhaps fearing that the courtroom would resound with gratuitous obscenity like some televised award ceremony, the Supreme Court denied CSPAN's request to broadcast the audio of the oral arguments in FCC v. Fox (the court has never permitted video in its chambers).
But they needn't have worried. General Garre, attorney Carter Phillips, representing the networks, and the nine justices all made it through 90 minutes of point/counterpoint without a single frontal lexical indecency, though to be sure, the air was thick with euphemism: 16 F-words, 1 F-bomb; 6 S-words; and one spelled-out d-u-n-g.
And despite the fact that no children were present, despite frequent mentions of the Pacifica case, and despite the FCC's insistence that the Court's 1978 ruling "limited only to the seven dirty words in Pacifica was unduly narrow," none of the late George Carlin's "words you can't say on TV" sullied the courtroom.
Nonetheless, anticipating a total ban on inadvertent and unscripted indecency, less than a week after oral arguments, MSNBC’s Joe Scarborough dropped one final F-bomb on his show, “Morning Joe.” And anticipating the FCC fine that is surely winging its way to the network's lawyers, MSNBC quickly put in a 7-second tape delay to monitor Scarborough's show. Scarborough's expletive certainly qualified as fleeting -- he wasn’t aware, for about 7 seconds, that he had even said the word. But if Scarborough ever appears on the Emmy Awards, the FCC will be waiting, and listening, with bated breath and a tape recorder.
Read my lips: Joe Scarborough drops fleeting expletive on his morning MSNBC show
