Can't John Roberts Afford Cable?

Today the U.S. Supreme Court heard oral arguments in a case involving the Federal Communications Commission's policy regarding shit and fucking on broadcast TV. Last year the U.S. Court of Appeals for the 2nd Circuit said the FCC violated the Administration Procedure Act when, in response to comments by Bono, Cher, and Nicole Ritchie on live award show broadcasts, it abruptly decided to start fining broadcasters for the sort of fleeting profanity it had long tolerated. The FCC is asking the Supreme Court to reverse the appeals court's decision. According to the Los Angeles Times, Chief Justice John Roberts and Justice Antonin Scalia both indicated during questioning that they were inclined to side with the FCC. "Broadcast TV is the one place where Americans can turn on the TV at 8 o'clock and not expect to be bombarded by indecent language," Robert claimed.

It's weird that the father of two young children apparently has never encountered Noggin, Nickelodeon, the Disney Channel, TV Land, or any of the other family-friendly cable channels. The justification for continuing to censor over-the-air channels while leaving their nonbroadcast competitors free to provide what they think their viewers want has never been thinner, given that the two kinds of channels are indistinguishable to the typical TV watcher, who gets all programming by cable, satellite, or phone line. Both kinds of channels are equally "pervasive," equally accessible, and equally blockable by disapproving parents. Furthermore, although the FCC clings to its antiquated notions of family hours and safe harbors, the time when shows are transmitted is increasingly irrelevant in the age of DVRs. According to the Times, Roberts "said that 'all sorts of other media are available' for for those who are not bothered by more open use of profanity, sex or violence." Likewise, all sorts of options are available to those who are. 

If most of the justices agree that the special treatment of over-the-air channels no longer makes sense, it seems likely that they will remedy the disparity by extending the First Amendment's full protection to broadcasters, as opposed to authorizing censorship of cable (though not necessarily in this case, which can be decided on statutory grounds). Broadcasting & Cable notes that "all five of the Justices that overturned a cable-related FCC content regulation [Anthony Kennedy, John Paul Stevens, David Souter, Clarence Thomas, and Ruth Bader Ginsburg] are still on the court." In that case, the Court said "the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests."  

I discussed the fleeting-profanity case earlier this year, when the Supreme Court agreed to hear it.

Addendum: A transcript of the oral arguments is available here (PDF). Contrary to Damon Root's hope, the words at issue make nary an appearance.

Comments

[the innominate one]

as Drew Carey wrote in his book Dirty Jokes and Beer, why should poor people be deprived of seeing tits and hearing cussing because they can't afford cable?

(paraphrased, obviously)

[Shem]

Shhhhh! They'll just take this argument as a sign that they need to regulate cable too.

[New World Dan]

From a technical standpoint, there's a very big difference between broadcast and cable. Cable must be explicitly brought into one's home, and if cable a-la-carte ever gains traction (fantasy, right, but bear with me), then even individual channels would be explicitly obtained. Broadcast, on the other hand, inherently comes into your home, whether you watch it or not, even though technology is required to view it.

A real good test for what you can say on broadcast TV is this: If I said it in a public park, would I get arrested?

[Al]

"Broadcast TV is the one place where Americans can turn on the TV at 8 o'clock and not expect to be bombarded by indecent language," Robert claimed.

Cocksucker!

[Shem]

A real good test for what you can say on broadcast TV is this: If I said it in a public park, would I get arrested?

Last I checked, nobody gets arrested for cursing in a public park, no matter what they say.

[Jaybird]

Did one of the Justices say one of the words?

I have a friend who wants to make a Justice saying "fuck" his ringtone, you see.

[Reinmoose]

I should be able to turn on the Internet without being bombarded by indecent language!!!

[I, Kahn O\'Clast]

One of the reasons cable TV has grown in popularity and why shows like The Sopranos gained such a large audience is that people was a certain verisimilitude in what they watch. A cop drama set in NYC in which not a single swear word is ever uttered and guys say shit like "darn!" is so unrealistic as to be distracting.

[I, Kahn O\'Clast]

was = want

sign

[Kaiser]

Hopefully SCOTUS will side with the broadcasters here. I have never understood "curse" words for a number of reason that I won't go into but the main one is, they just words. The only thing that makes them bad is society.

One point I would like to make is:

Why are there different "levels" of cursing. Words such as ass, bitch, damn, god damn, and now recently even shit are allowed on television. However fuck, cunt, racial words (most of them anyways) are out of bounds? What gives?

[John C. Randolph]

I wish I'd been paying attention to this case earlier on. I would have liked to file a seven-word amicus brief.

http://www.erenkrantz.com/Humor/SevenDirtyWords.shtml

-jcr

[Reinmoose as an authoritarian]

why should poor people be deprived of seeing tits and hearing cussing because they can't afford cable?

Because people who can't afford cable will be further corrupted by cuss words and nudity. If we want them to someday be able to get good jobs, they have to first learn what is and is not acceptable in our great society.

[old chinese dude]

Scalia Cocksucker! Roberts Cocksucker!

[SJE]

An issue that was raised in discussions was that censoring broadcasts, but not censoring cable, is arbitrary. Given the pervasiveness of cable, this is not a bad argument. We know that the FCC wants to nanny state everything it can. I hope that SCOTUS draws the same "free over the airways" line, and/or that language that would lead to a hefty fine from the FCC would be considered unremarkable on the streets of any major city.

[stuartl]

I have never understood "curse" words...

Kaiser, the linguist Steven Pinker goes into this in great depth in his book, The Stuff of Thought. To make a long story short, those words are wired into a different part of the brain from regular language. Google around for articles about the book and you should find some interesting (and funny) stuff.

[R C Dean]

Cable must be explicitly brought into one's home,

Makes no difference. A TV has to be explicitly brought into your home. The argument is that cable TV channels are free to do what it wants because you have to invite them into your home applies equally to broadcast TV, does it not?

[MAX HATS]

Don't see the logic here in the criticism. If the airwaves are public (and how could they not be) then the public can choose what goes on them. What is the problem?

[the innominate one]

New World Dan - don't you explicitly bring broadcast into your house by, I don't know, purchasing a TV and bringing it home?

further, don't all modern TVs have V-chips?

the FCC is pretty much obsolete, except for the suggestions J sub D made yesterday

[TrickyVic]

You should google before you say, "last I checked"?

"Festevents, which organizes the Town Point Park festivals, posted an apology on its Web site saying it regretted "our guests were exposed to profanity ... the musician responsible has been charged with abusive language by the Norfolk Police Department."

http://hamptonroads.com/2008/06/performer-ordered-stage-profanity-norfolk-festival

There was a few others.

"""Makes no difference. A TV has to be explicitly brought into your home. """

Cable refers to the mode of transmission. The TV is not the mode of transmission. That's sort of like comparing your computer to DSL. It's apples and oranges.

Cable goes directly into your home. Broadcast goes everywhere. There is a major difference. The FCC has authority over everything broadcasted using RF. The limits of that authority is fair game and the FCC shouldn't be in the buisness of regulating content.

[cguar]

Hey, that "old chinese dude" had a name -- Wu

Wu: Swi-gen! Cocksuckers!
Swearingen: I sure am glad I taught you that word.

[TrickyVic]

"""further, don't all modern TVs have V-chips?"""

Yes they do, but that requires parental involment. Many parents would rather the FCC play the bad guy when their 7 year old wants to see The Family Guy.

The FCC is not obsolete, they are more relevent than ever for the task they suppose to do, carving up the RF spectrum. Lots more radio device and RF ranges are used today.

[Shem]

You should google before you say, "last I checked"?

And you should google a little harder. He was issued a misdemeanor, and ordered to appear in court, which, while lousy, is a far different animal from arrest and detainment. And, I'll add, the charges against him were dropped when he went to court.

A different account, which describes the musician leaving the park peacefully after the Police issued the charges.

[the innominate one]

Yes they do, but that requires parental involment. Many parents would rather the FCC play the bad guy when their 7 year old wants to see The Family Guy.

TFB

Cable refers to the mode of transmission. The TV is not the mode of transmission. That's sort of like comparing your computer to DSL. It's apples and oranges.

Way to miss the point. Both require explicit participation on the part of the resident to permit viewing of the signal. Sure, broadcast enters your home even without a TV receiver, but you can't see it. You're being bombarded with analog information on the electromagnetic spectrum describing nudity and cussing, but you can't see it or hear it.

[R C Dean]

The TV is not the mode of transmission.

But if you don't have one, you can't see the broadcast. So, in order to see the broadcast you have to voluntarily bring a TV into your house, just like you have to bring cable into your house to see what's on cable.

[R C Dean]

Dammit, innominate one! Quit typing so fast!

[the innominate one]

I guess we're on the same wavelength today, RC.

ba-dum bum

[TrickyVic]

"""Way to miss the point. Both require explicit participation on the part of the resident to permit viewing of the signal."""

But only one is under FCC jursidiction, that was my point.

[Isaac]

Cable refers to the mode of transmission. The TV is not the mode of transmission. That's sort of like comparing your computer to DSL. It's apples and oranges.

Time to get really nit-picky. Cable lines also emit EM signals. Though far fainter, they will still travel into neighboring houses, and if you had a sensitive enough receiver (and advanced enough filters) you could pick up on it. Hell, with modern technology, you could up on and listen in to your gay neighbor and his dog watching porn together.

[Chuck]

According to SCOTUSBlog, no one cursed.

The Supreme Court spent a spirited hour Tuesday talking about dirty words, but nobody ever uttered one of them, so the Court's performance had to be judged on the quality of legal prose and reasoning - hardly the stuff of titillation, even in a courtroom. With Chief Justice John G. Roberts, Jr., and Justice Antonin Scalia the only ones to tip their hand by enthusiastically promoting government authority to ban "fleeting expletives" on radio and television in daytime and prime time, the other members of the Court wandered somewhat randomly through alternative legal principles. The blandness of the proceeding seemed captured in a closing question by Justice John Paul Stevens, as to whether the word "dung" would be indecent under federal communications law.

http://www.scotusblog.com/wp/analysis-prudence-prevailed-but-the-news-stops-there/

[the innominate one]

TrickyVic:

The point is content of broadcast shouldn't be under FCC jurisdiction.

[Chuck]

Let's make that a link.

[KidCarnivore]

Chase Utley was not available for comment.

[Reformed Republican]

The FCC has authority over everything broadcasted using RF.

Then I guess that gives them control over the internet, since someone's wireless might leak into my house, exposing me to porn or cursing.

[Reformed Republican]

and alllow broadcasters to use "the F-word 24 hours a day," perhaps with Big Bird dropping "the F-bomb" on "Sesame Street," or someone doing so on "Jeopardy."

Right. Because the producers of these shows do not understand their target audience.

Well, I could see someone cursing on Jeopardy, but I am sure Alex would put them in their place.

[TrickyVic]

"""Time to get really nit-picky. Cable lines also emit EM signals."""

Back at ya, leakage is not the same as transmitting.

"""The point is content of broadcast shouldn't be under FCC jurisdiction.""

I agree. All I'm doing is recognizing the fundimental differences between cable and broadcast which is the root of the FCC claim to regulate broadcast. The difference is not irrelevent for the purpose of jurisdiction.

[TrickyVic]

"""Then I guess that gives them control over the internet, since someone's wireless might leak into my house, exposing me to porn or cursing."""

They do have control over which frequencies your device can transmit on, that is the FCC purpose. That's doesn't mean they should be in the buisness of regulating content.

[Mark F.]

Please explain why hearing "fuck" and "shit," as opposed to "sexual intercourse" and "feces," is going to harm someone.

[TrickyVic]

I'll take curse words for $100

Alex, what is the word Fuck.

[the innominate one]

All I'm doing is recognizing the fundimental [sic] differences between cable and broadcast which is the root of the FCC claim to regulate broadcast. The difference is not irrelevent [sic] for the purpose of jurisdiction.

Those fundamental differences aren't that different, thus the analogies being drawn by myself and others.

[TrickyVic]

"""Those fundamental differences aren't that different, thus the analogies being drawn by myself and others."""

Not to the end user, but the technology used for transmission is very different which is why one is under the FCC, and the other not so much.

[Kaiser]

stuartl

Kaiser, the linguist Steven Pinker goes into this in great depth in his book, The Stuff of Thought. To make a long story short, those words are wired into a different part of the brain from regular language. Google around for articles about the book and you should find some interesting (and funny) stuff.

Thanks for the heads up I will look into that.

[libertymike]

What part of "Congress shall make no law" don't folks get?

[shahzaib]

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