It is hard to imagine that a wordsmith like Justice Scalia can be handed such rich material such as a dispute over the FCC regulation of “F***” and “S***” — and so handily drop the ball by writing a boring Opinion. Perhaps he felt it too easy. Indeed, nearly every Justice chimed in with their own dissent or concurrence, with little interesting to say. Aside from those of us looking for something purient or a zinger-rich opinion, purists will note there is nothing constitutional in these opinions.
In Federal Communications Commission (FCC) v. Fox Television Stations et al., the issue was whether “fleeting expletives” said by celebrities during award shows are indecent under the FCC standards. Yes, we have Cher and Paris Hilton/Nicole Richie to blame for this.
The FCC’s indecency ban dates back to George Carlin in the 1970’s. We all know the story. In 2004, the FCC said that nonliteral (expletive) use of the F-word and S-word could be actionably indecent — meanwhile, it let singer Bono off the hook for his F-bomb at an award show (it was used as an “intensifier rather than a literal descriptor”). The “2004 order” specifically noted that the FCC was changing course from prior rulings and, henceforth, it was going to consider fleeting expletives sanctionable. You’ve been warned.
We then undergo a bit of a time travel flip-flop. Prior to the 2004 Order, two nitwit celebrities (Cher and Richie) drop their F and S bombs in a hostile and literal manner, respectively. The FCC, in 2006, took action using the 2004 order. Question for the courts, can the FCC change its mind on this issue in the manner it did?
Yes, as long as it acknowledges it is changing course and offers a reasonable basis for it. The Court set out a few guidelines, but none are terribly interesting. Bottom line, broadcasters will need to bleep bad words or have a damn good excuse why they missed it.