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The FCC's Real F-Word: Freedom
Why did the Supreme Court just uphold government censorship?
Anyone who has ever dealt with attorneys has come to the realization that the law does not always make perfect sense. Even so, it comes as at least a mild surprise to find the Supreme Court cheerfully authorizing the government to engage in censorship, as it did this week.
The First Amendment is admirably blunt in saying, "Congress shall make no law...abridging the freedom of speech." But never doubt the ability of a lawyer to turn clarity into mud. Recalling a case involving a raunchy routine by comedian George Carlin, Justice Antonin Scalia said, with evident approval, "that the First Amendment allowed Carlin's monologue to be banned."
Say what? As a matter of logic, that's like saying the 10th Commandment requires you to covet your neighbor's wife and ox. The Constitution was actually designed to prevent the government from telling people what they cannot say.
But the Supreme Court has a way of ignoring the obvious anytime there is a convergence of two things: broadcasting and bad words. So Tuesday, it ruled that the Federal Communications Commission was within its powers to punish TV networks for airing even a single F-word or S-word.
That was a departure from past policy, which made allowances for the unpredictability of live coverage. The FCC once disregarded expletives unless they were used repeatedly. But in 2004, it decided the youth of America could not withstand a single fleeting vulgarity. So it found Fox Television Stations guilty for airing profane outbursts by Cher and Nicole Richie.
What the court did not resolve is the question of how on earth the FCC can punish people for utterances of which it disapproves. The federal government, after all, may not outlaw all use of the F-word. It may not forbid you from saying it in your home, car, workplace, neighborhood diner or tavern, gym, local park, or place of worship.
It also may not outlaw foul language in movies, plays, concerts, musical recordings, websites, satellite radio programs, or even cable TV shows. Any such prohibition, you see, would violate your freedom of speech.
So where does the government get the power to punish someone for saying that word on Fox's telecast of the Billboard Music Awards? From Supreme Court justices who, decades ago, carved out a large loophole in the First Amendment rather than let free speech run amok on TV and radio. It said the FCC could impose rules that would never pass muster in any other medium, on the dubious theory that the airwaves were a scarce commodity requiring government rules on content.
Nowadays, broadcast outlets are only one of many ways that people find news and entertainment. Most people get their over-the-air TV channels not over the air, but via cable or satellite transmissions. But because the FCC insists on clinging to its antiquated regulatory authority, words that may be used on Channel 31 are illegal on Channel 32.
The excuse is protecting impressionable youngsters from irreversible coarsening. Scalia and his colleagues rationalized the FCC action by saying that "it suffices to know that children mimic the behavior they observe—or at least the behavior that is presented to them as normal and appropriate."
But in much of the world that modern children inhabit, that behavior is already regarded as normal and appropriate. Most grade-schoolers didn't learn the bad words they know from Cher. They learned them from peers, just as their parents and grandparents did. In most homes, they know better than to mimic that behavior within earshot of their parents, regardless of whether they see it on TV.
Without the FCC's vigilance, parents who want to shield their offspring from random F-bombs would have to monitor their TV viewing. But if they have cable or satellite service, they already have to do that. And their bigger challenge is supervising Junior and Sissy when they surf the Internet, which most families welcome into their homes even though its content is unregulated.
That's right. Amazing though it may sound, the World Wide Web is a means of mass communication that operates without federal censorship, relying on users to depend on their own judgment, deploy their own filters or simply take their chances. If that approach works for a new medium, maybe someday we could try it on an old one.
COPYRIGHT 2009 CREATORS SYNDICATE, INC.
Suki|4.30.09 @ 7:09AM|#
"Anyone who has ever dealt with attorneys has come to the
realization that the law does not always make perfect sense."
TEE HEE HA!
|4.30.09 @ 7:14AM|#
Doesn't the FCC distribute the rights to radio and TV broadcasting airwaves? If so, then it follows that it has the right to attach conditions surrounding their use, just as a private actor would have the right to do the same.
ed|4.30.09 @ 7:48AM|#
"Ever", JCR? Who knows...maybe Scalia will find bin Laden or figure out a way to turn lead into gold. Forever is a long time, but Carlin is still dead.
ktc2|4.30.09 @ 8:00AM|#
Steve,
Wake up and smell the tyrrany. We have the most anti-freedom SCOTUS
in my lifetime when it comes to civil liberties.
Have you been living under a rock? How could you possibly be
surprised.
|4.30.09 @ 8:09AM|#
Broadcast TV belongs in the same graveyard as print media.
Another nail in its coffin.
There was discussion yesterday on one of the threads about people
fleeing the cities for the suburbs. This the same situation, in
this case cable and internet are the suburbs.
|4.30.09 @ 8:33AM|#
The world is crumbling around us and we're worried about profanity on broadcast tv?
Add To Drinking Game?|4.30.09 @ 8:54AM|#
The world is crumbling around us and we're worried about
profanity on broadcast tv?
You're posting about X when you should be posting
about Y?!?!
The Mythical Canadian Libertar|4.30.09 @ 8:59AM|#
Wow! Ten comments in without anyone complaining that Chapman isn't libertarian enough. That's got to be some kind of record.
|4.30.09 @ 9:08AM|#
My comment was aimed more at the SCOTUS, but, it also would fit H&R. Never too early for a drink for me, even if it's my fault.
|4.30.09 @ 9:13AM|#
It's never too early to drink. Or take a Vicodin when you get to work. Trying not to falling asleep...
|4.30.09 @ 9:14AM|#
Let me double check on wikipedia:
http://en.wikipedia.org/wiki/First_Amendment_to_the_United_States_Constitution
Doesn't look like it's been edited yet.
"Congress shall make no law ... abridging the freedom of
speech"
No big words. Seems fairly simple to me.
YO FUCK SCOTUS
|4.30.09 @ 9:19AM|#
Of course...
Is "You're posting about X when you should be posting about Y?!?!"
just a corollary of "Why aren't libertarians agreeing with my
conspiracy theory (Troofer, Vaccines/Autism, Concentration camps,
etc), you must be government dupes!" Or is the second instance
already covered by the existing "If you were real libertarians,
then X, Y, and Z." rule?
|4.30.09 @ 9:21AM|#
Curse you SugarFree, and your never-ending supply of opiates. I'm this close to planting poppies this Spring, and they ain't fer smellin'.
Xeones|4.30.09 @ 9:21AM|#
Yo, fuck the drinking game (but only because i left my flask at home DAMMIT).
|4.30.09 @ 9:25AM|#
You are all dumber for having read this column, which badly
misrepresented the ruling, by bringing up the First Amendment
issues, which weren't even at stake here. This ruling
specifically was not considering the First Amendment, which
will be considered in a future Second Circuit and possibly Supreme
Court ruling, depending on appeal.
This ruling specifically was an administrative law decision that
assumed the precedents Red Lion v. FCC (Fairness Doctrine,
FCC power in general) and FCC v. Pacifica (Carlin's dirty
words). It was only ruling about whether the FCC could change its
policy of enforcement in certain ways, given that it was already
assumed Constitutional to ban the seven dirty words.
It was sent back to the Second Circuit to consider the First
Amendment issues, as noted in Scalia's opinion. Now, while Justice
Thomas wrote a specific concurrence saying that he agreed with the
administrative law decision, but as a matter of the First Amendment
he would be voting the other way and saying that the FCC did not
have the power to ban expletives at all, Justice Stevens (author of
Pacifica) specifically wrote in his concurrence
that he still agreed with the FCC being able to ban expletives, he
just didn't think that the FCC could change its policy in the
manner it did without more notification and a comment period.
(Changing the policy, that is, from fines only for scripted works
in general to including the occasion expletive in a live awards
show.)
|4.30.09 @ 9:26AM|#
What the court did not resolve is the question of how on earth the FCC can punish people for utterances of which it disapproves.
Yes, but Justice Scalia's ruling specifically instructs the Second
Circuit to resolve that very issue, and then will deal with that
question on appeal.
|4.30.09 @ 9:27AM|#
What about a "WTF?!? No hat tip for [national story that's been on Drudge for 24 hours]?!?" rule as long as we're looking for excuses to sip.
|4.30.09 @ 9:28AM|#
John Thacker,
Thanks for the illumination.
I will add that I could never be a lawyer because I could barely
make it through those three short paragraphs (which weren't even in
legalese).
|4.30.09 @ 9:28AM|#
FrBunny,
Ever-dwindling supply you mean. I'm running out at an alarming
rate. Where are all these drug "pushers" you hear so much about?
I've walk past three schools on the way home and I've never seen
one leaning against a chain link fence offering free samples.
Stupid ONDCP leading me on.
|4.30.09 @ 9:33AM|#
SF,
And what about all the shady doctors who will supposedly hand it
out to anyone with shin splints? We're in KY for gawd's sake; this
is supposed to be an epidemic!
|4.30.09 @ 9:40AM|#
I sent this in a tip. I gave them two whole days to post about
it.
Feministing on
Libertarians
Not as bad as you might think, but still a lot of this sort of
enlightened political discourse:
April 28, 2009 6:09 PM Citizen Lane said:
Libertarians are sociopaths.
|4.30.09 @ 9:43AM|#
Fuck Steve Chapman, Antonin Scalia, Network Television, and the entire cast of High School Musical.
|4.30.09 @ 9:44AM|#
FrBunny,
I can't really doctor shop with my insurance.
Seriously, though, fuck the DEA. I'd like to beat them all to death
with their genitals. I tore my rotator cuff Saturday and the
DEA-scared doc sent me home with an anti-inflammatory. A COX2
inhibitor for a torn tendon. Motherfuckers.
|4.30.09 @ 9:49AM|#
I tore my rotator cuff Saturday
You tried one of those Western-grip handjobs, didn't you? Nobody
likes a fancy-pants, SugarFree.
hmm|4.30.09 @ 9:55AM|#
Some tech, engineer, smarter than 99% of the population nerds need to figure out how to eliminate the scarcity prong.
|4.30.09 @ 9:56AM|#
I tore my rotator cuff Saturday and the DEA-scared doc sent me home with an anti-inflammatory.
Not to make light of your painful injury, but was this an "I-hurt-myself-doing-something-badass" tear or a "damn-I-can't-believe-I-hurt-myself-doing-something-so-mundane" tear?
|4.30.09 @ 10:01AM|#
The latter. A 40 pound bag of ice did me in. Reached into a
commercial freezer, was a little off-balance and the bag was frozen
to the floor. There was crack, my arm went dead for a minute, and
here we are. (I already had some problems with this shoulder from a
much more macho power tool injury from a few years ago.) No word
yet if I going to have surgery. I imagine they will flay my arm
open and send me home with a few Extra-Strength Tylenol.
Anyway, I have a tedious meeting. Try and make fun of me while I'm
gone.
|4.30.09 @ 10:06AM|#
This wasn't actually a first-amendment case. Fox won it in the
2nd Circuit on a theory that the FCC's policy changes were in
violation of some administrative-law rules that prevented arbitrary
changes to regulations (IIRC).
I don't believe the Supreme Court was asked to determine whether
the FCC ruling was constitutional under the first
amendment...
I'm going to actually read the decision tomorrow. I'm writing a
seminar paper on the subject of FCC regulations.
The long and short of it is this: The court recognizes that
indecent language is protected speech, but creates an exception
that allows broadcasters to be fined for allowing indecent speech
during the hours when children are likely to be in the audience.
The rationale is based on the pervasiveness of broadcast television
in our lives as well as the fact that once an offensive word is
heard changing the channel does not actually remediate the
situation.
It's very tenuous reasoning. Indecent content is fully protected
speech in every other format, btw.
High Every Body|4.30.09 @ 10:06AM|#
SugarFree,
I sent this in a tip. I gave them two whole days to post about
it.
Feministing on Libertarians
Doing your Naga impression today Mr. 25 hours behind?
Doing his
work while SF is on a Feministing strike: The Feministing take on
Libertarianism.
|4.30.09 @ 10:12AM|#
Pacifica and its ilk were pretty clearly wrongly decided back in the 70s, but they're insanely wrong in the factual and the Constitutional sense today. The only possible justification was the scarce resources argument, which was tenuous in the first place. The pervasiveness argument, by the way, was stupid when it was first written.
|4.30.09 @ 10:13AM|#
SugarFree: If your rotator cuff condition is chronic, and you
live in a non-urban setting, get some ("organic", non-irradiated)
poppy seeds. (Try at a "natural" foods store.) Plant them and you
will get a nice crop of opium poppies. Harvest appropriately and
use for tea etc. Wash down your Extra-Strength Tylenol with opium
poppy tea.
Or, you can get whole poppy pods at some flower shops, at certain
times of the year. They are used for decorative flower
arrangements.
Naga Sadow|4.30.09 @ 10:29AM|#
Huh? Did someone call my name? I'm almost certain someone did . . . guess I'll head back to class now.
|4.30.09 @ 10:55AM|#
Skipped the torture thread all together, HEB. I skip threads with a high likely that a bunch of leftards will show up and yell at us for never criticizing Bush for the last 8 years. Dumbcunts.
Jon |4.30.09 @ 11:09AM|#
Dear Reason staff:
Please (a) read John Thacker's piece above, and (b) seriously
reconsider publishing Chapman's articles in the future. Had Chapman
read the ruling--which, presumably he should if he is going to
opine on its merits in a national magazine--he would have learned
that the 1st Amendment issue was set aside for another court to
consider and that the actual SCOTUS opinion resolves very little.
The NY Times or scotusblog.com would provide this correct
information.
Here is the
opinion:http://www.supremecourtus.gov/opinions/08pdf/07-582.pdf
. . . and the relevant paragraph:
"Whether that is so, and, if so, whether it is uncon
stitutional, will be determined soon enough, perhaps in
this very case. Meanwhile, any chilled references to excre
tory and sexual material "surely lie at the periphery of
First Amendment concern," Pacifica, 438 U. S., at 743
(plurality opinion of STEVENS, J.). We see no reason to
abandon our usual procedures in a rush to judgment
without a lower court opinion. We decline to address the
constitutional questions at this time."
|4.30.09 @ 11:13AM|#
There is a different angle on this issue.
The FCC was created as a technical organization to keep radio
(wireless) signals from stepping on each other. It did a good job
of assigning frequencies and power limits.
Somewhere along the line, the FCC expanded its mandate to the
censorship of content. This is the root of supreme court decision.
The fix is simple. Disband all parts of the FCC that are not within
the original mandate. The president or congress can do this.
Boston|4.30.09 @ 11:23AM|#
I hear J Sanchez is sans job. Perhaps he can take Chapman's spot? Pleaseeeeeeeeeeeeeee, Reason?
|4.30.09 @ 11:29AM|#
I tried to stay golden.
And keep watching sunsets? I saw Ponyboy is on Southland
as a gruff sexist cop now.
|4.30.09 @ 11:44AM|#
Pacifica and its ilk were pretty clearly wrongly decided back in the 70s, but they're insanely wrong in the factual and the Constitutional sense today. The only possible justification was the scarce resources argument, which was tenuous in the first place. The pervasiveness argument, by the way, was stupid when it was first written.
I totally agree with this. So, incidentally, does Justice Thomas.
Justice Stevens's separate dissent makes it clear that he does not.
So we probably will have Justices flip on both sides. There are
some Justices, like Thomas, who believe that if you grant the FCC
the power to restrict expletives, it can choose to do so on
scripted programs only or also in live programs. There are other
Justices, like Stevens, who believe that the FCC can restrict dirty
words in some ways but not others. There may be other Justices who
will go along with various progressive and good-government groups'
friend of the court briefs and say that the FCC cannot regulate
dirty words, but really needs to still have the power to regulate
other, more dangerous content, like political content that attacks
incumbents without proper balance.
|4.30.09 @ 11:49AM|#
I should also point out that some of the dissenters felt that
the new policy may have been Constitutional, but that the FCC did
not allow enough of a public comment period before changing policy.
I'm not opposed to public comments (though I'm not sure how effect
they are ever) and to delays between changing policy, though I'm
not sure how they relate to the Consitution.
We see, incidentally, once again how Justice Thomas is an idealist,
not a pragmatist. He believes that the FCC does not have the power
to regulate, but that if that power is granted, that
Constitutionality does not turn on issues like live versus scripted
programs. Other Justices are much more likely to pragmatically
split hairs and think that it is the judicial branch's role to
determine that the Constitution allows banning repeated dirty words
in scripted broadcasts, but not a fleeting use in a live
broadcast.
Tim Cavanaugh|4.30.09 @ 12:25PM|#
Mega dittos to John Thacker. This ruling turned on an extremely
narrow question: whether the FCC was within its rights under the
Administrative Procedures Act. The majority ruling punted on the
First Amendment question, but Justice Thomas' concurrence addressed
it very directly, and is an open invitation to revisit the issue at
the expense of FCC authority:
"This deep intrusion into the First Amendment rights of
broadcasters, which the Court has justified based only on the
nature of the medium, is ... problematic on two levels.
"First, instead of looking to first principles to evaluate the
constitutional question, the Court relied on a set of transitory
facts, e.g., the 'scarcity of radio frequencies,' Red Lion, supra,
at 390, to determine the applicable First Amendment standard. But
the original meaning of the Constitution cannot turn on modern
necessity: 'Constitutional rights are enshrined with the scope they
were un-derstood to have when the people adopted them, whether or
not future legislatures or (yes) even future judges think that
scope too broad.' District of Columbia v. Heller, 554 U. S. ___,
___ (2008) (slip op., at 63)..."
There's more, and while Thomas rightly ridicules the idea of
subjecting essential rights to situational changes, he also
acknowledges that the FCC rules over a shrinking wasteland. The
significance isn't the decision, but that this and future cases are
of rapidly diminishing importance. (And that Paris Hilton now has a
prominent place in Supreme Court literature.)
If anything's worrisome, it's the dissenters, who believe FCC
authority benefits the nation, and just want to tweak the
application of that authority on good-government grounds.
Ben|4.30.09 @ 12:30PM|#
"shall make no law" does not change its meaning one jot or
tittle if the resource is scarce or controlled.
This is just an example of a government out of control, and a
populace comprised of sheep.
Nothing better can be made out of it.
|4.30.09 @ 1:44PM|#
I agree that the case appears to only have raised the APA issue,
which made it difficult for the Court to rule on the
constitutionality of the FCC as a content regulator.
Still, having a regulation or law continue to exist for years and
years that is not only obviously unconstitutional but apparently
viewed that way by a majority of the Court is disturbing and
indicates a possible flaw in judicial review.
|4.30.09 @ 3:12PM|#
Still, having a regulation or law continue to exist for years and years that is not only obviously unconstitutional but apparently viewed that way by a majority of the Court is disturbing and indicates a possible flaw in judicial review.
It indicates a flaw in the justices, that's for sure. But given
that the Court made the wrong ruling to start with-- and that
Justice Stevens, who ruled in Pacifica is still on the
bench-- it's not surprising that it takes these things years to be
overruled or even challenge.
The "pervasive" argument has never held water with me-- couldn't
people always change the channel or turn it off? The scarcity
argument is I suppose not totally insane originally-- if they have
to ration spectrum so that it doesn't interfere, government is
still deciding who has legal rights to broadcast and who doesn't.
But surely rights could be awarded in a content neutral manner, one
might hope.
Like Justice Thomas, I'm deeply skeptical of the original Red
Lion and Pacifica rationales, and would not have
ruled that way. But even granting them, their underlying principles
just don't hold water in modern days. Not with V-chips and cable
and satellite television and home video and the Internet and all
sorts of competition for viewing.
Granted, of course, if Scalia votes to uphold Pacifica
next time around, feel free to criticize him them, Steve.
Tim Cavanaugh|4.30.09 @ 3:17PM|#
The argument isn't scarcity so much as it's ownership -- the idea that the "public" owns the airwaves and decides what should go there. In a sense, upholding that precedent might be useful in the future, as the "airwaves" become less important and owners of media people actually use will have more leeway in deciding how their media get used. If I were an opponent of net neutrality, I'd certainly be making that case -- though it may be stretch.
|4.30.09 @ 3:32PM|#
Tim,
My days of First Amendment scholarship are behind me, but my
recollection is that the pure "public ownership" theory was
displaced by the "scarce public airwaves" concept in the 70s. It
wasn't enough to say that the public owned the airwaves, because,
without the scarcity, that ownership would not justify content
regulation. Or so the theory goes.
"Pervasiveness" also is based on the scarcity theory, which, of
course, makes the whole business a house of cards in the days of
hundreds of cable channels, digital broadcast, satellite, and, most
importantly, the Internet. Even radio has analogues in such
media.
|4.30.09 @ 3:52PM|#
# Tim Cavanaugh | April 30, 2009, 3:17pm | #
# The argument isn't scarcity so much as
# it's ownership -- the idea that the "public"
# owns the airwaves and decides what should
# go there.
But, absent a rational justification, this is simply a resource
grab, just as if someone were to assert that the public owned all
oil under the ground -- on what basis would that assertion be
founded? In this case, the ownership claim was supported by the
"scarce commons" argument, which is no longer persuasive or
relevant in the present day.
Look at it in terms of territory. Nobody "owns" an undiscovered,
unoccupied countryside. But then, one day, explorers come and claim
it. They can claim it in their own names, or in the names of some
sovereign. But once the claim is made, the basis for ownership is
established.
"The public" didn't own the airwaves before they were discovered.
And "the public" didn't create the apparatus that allowed the
"occupation" of this metaphorical "countryside." Had that apparatus
never been invented, the "new country" would have remained
undiscovered, or at least unexplored and devoid of human presence.
But at some point (I'll say 1934, to drive a stake into the
ground), they seized ownership. In my opinion, that seizure was
illegitimate. It is one thing for the government to send
peacekeepers into the new territory (FCC adjudicating bandwidth
claims and apprehending/punishing trespassers). But it is another
thing for the government to assert total ownership of the resource,
even to the point of dictating free-speech content in contravention
of the government's own constitution.
phalkor|4.30.09 @ 4:51PM|#
FUCK!?!? The internet isn't regulated!?!?!?
Somebody should do something about this. If only the right people
where in charge.
|4.30.09 @ 6:04PM|#
It should be obvious by now that Scalia, et al will always decide in favor of federal power. The are the antichrist when it comes to a strict reading of the constitution. In fact, they read the 14th amendment backwards on a mirror. All power not specifically vested to the people belongs to the state and all power not specifically vested to the state belongs to us.
Tim Cavanaugh|4.30.09 @ 6:37PM|#
Not agreeing with the logic, J.A.M., just saying a broad my-medium-my-rules application might be useful in future cases.
|4.30.09 @ 6:42PM|#
phalkor,
Please pay a fine of $25,000 to your nearest federal agent.
Thank you.
Tim/JAM,
I think several members of the Court went out of their way to
telegraph a willingness to toss Pacifica and similar cases
out the window. That usually doesn't happen unless the justices
think they can swing a majority. The only problem is whether the
concessions they'll have to make to get the majority won't undo
whatever good we might hope for.
The Libertarian Guy|5.1.09 @ 10:10AM|#
Yet another chip knocked out of the foundation. Way to go, FCC. Pretty soon, you'll have your leaders' wish of a government-controlled media and internet.
Leave a Comment
More Articles by Steve Chapman
- America Only Seems Polarized, Steve Chapman, November 5, 2009
- A Big, Fat Political Mistake, Steve Chapman, November 2, 2009
- The Unhealthy 'Public Option', Steve Chapman, October 29, 2009
Related Articles (Free Speech/First Amendment)
- In Defense of Extreme Pornography, Greg Beato, October 27, 2009
- In Defense of Fox News, David Harsanyi, October 21, 2009
- Bigot Bonus, Jacob Sullum, October 14, 2009
- Scenes From a Crackdown, Radley Balko, October 5, 2009
- Speak Freely, Jacob Sullum, October 1, 2009
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