Antonin Scalia

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.


NEXT: The Untold Story of the Hoot-Smalley Act

Antonin Scalia Free Speech

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63 responses to “The FCC's Real F-Word: Freedom

  1. “Anyone who has ever dealt with attorneys has come to the realization that the law does not always make perfect sense.”


  2. 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.

  3. George Carlin did more for this country than Antonin Scalia ever will.


  4. “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.

  5. 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.

  6. 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.

  7. The world is crumbling around us and we’re worried about profanity on broadcast tv?

  8. 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?!?!

  9. Wow! Ten comments in without anyone complaining that Chapman isn’t libertarian enough. That’s got to be some kind of record.

  10. Add To Drinking Game?


  11. 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.

  12. Seconded.


  13. It’s never too early to drink. Or take a Vicodin when you get to work. Trying not to falling asleep…

  14. Let me double check on wikipedia:

    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.


  15. Fuck the draft!

  16. 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?

  17. 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’.

  18. Yo, fuck the drinking game (but only because i left my flask at home DAMMIT).

  19. 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.)

  20. 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.

  21. 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.

  22. 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).

  23. 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.

  24. 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!

  25. 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.

  26. Yo, fuck Citizen Lane.

  27. Fuck Steve Chapman, Antonin Scalia, Network Television, and the entire cast of High School Musical.

  28. 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.

  29. I tore my rotator cuff Saturday

    You tried one of those Western-grip handjobs, didn’t you? Nobody likes a fancy-pants, SugarFree.

  30. You gotta keep your moves fresh, Honey Bunny.

  31. Some tech, engineer, smarter than 99% of the population nerds need to figure out how to eliminate the scarcity prong.

  32. 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?

  33. 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.

  34. 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.

  35. 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.

  36. 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.

  37. 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.

  38. Huh? Did someone call my name? I’m almost certain someone did . . . guess I’ll head back to class now.

  39. Naga,

    LOL, you are only 23 min. behind today.

  40. 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.

  41. 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 would provide this correct information.

    Here is the opinion:

    . . . 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.”

  42. SF,

    Such a lame excuse. You used to shine at that.

  43. I tried to stay golden.

  44. 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.

  45. I hear J Sanchez is sans job. Perhaps he can take Chapman’s spot? Pleaseeeeeeeeeeeeeee, Reason?

  46. I tried to stay golden.

    And keep watching sunsets? I saw Ponyboy is on Southland as a gruff sexist cop now.

  47. 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.

  48. 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.

  49. 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.

  50. “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.

  51. 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.

  52. 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.

  53. 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.

  54. 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.

  55. # 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.

  56. FUCK!?!? The internet isn’t regulated!?!?!?

    Somebody should do something about this. If only the right people where in charge.

  57. 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.

  58. Not agreeing with the logic, J.A.M., just saying a broad my-medium-my-rules application might be useful in future cases.

  59. phalkor,

    Please pay a fine of $25,000 to your nearest federal agent.

    Thank you.


    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.

  60. 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.

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