In one of the more eagerly awaited decisions of this term, the Supreme Court today upheld the power of the FCC to punish broadcast profanity, even so called "fleeting expletives." Wait a sec . . . I feel a song coming on:
With that said, it's important to keep in mind precisely what the 5-4 decision held (read it here). The Court did not resolve any issues of First Amendment law. This case was all about whether the FCC's decisions about fleeting expletives squared procedurally with the requirements of the Administrative Procedures Act. The stations raised some First Amendment issues, but the Court squarely declined to address them. If/when those issues reach this Court, things could get very interesting, given Thomas's concurring opinion today.
Ooh, wait . . . another song:
With that said, I can't find too much fault in the Scalia-penned decision. It might be wrong, but not woefully so.
I will point out one thing about the opinion that Ken at Popehat noticed, too. In 1971, the Court held that a guy couldn't be convicted for disturbing the peace for wearing a jacket with "Fuck the Draft" written on it, thanks to the First Amendment. In that opinion, the Court didn't shy away from actually writing "fuck" where it was necessary. By contrast, today's case is replete with references to the "F-Word" and "S-Words" (plural? Is "snugglebunnies" on the FCC banned list?).
C'mon, Supremes, we're all adults here. How many kids to you think stay up late at night, furtively reading copies of the US Reports with a flashlight under the covers? I'll lay odds on somewhere between "zero" and "none." If the broadcasters want - er, need, now - to bowdlerize, fine. There's no need for courts to.
UPDATE: Oh boy, I've seen a lot of people discussing this excerpt from Scalia's opinion:
In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.This in response to the dissent's concerns about the effect of the FCC rule on smaller local broadcasters. Elitism on parade! And almost certainly false, to boot. I wonder what color the sky is in Scalia's world?