Though no one ever actually dropped it, the "F-Bomb" was the main topic of conversation during Supreme Court arguments Tuesday in FCC v. Fox Television Stations.
The case is on appeal from a Second Circuit decision that the FCC acted arbitrarily when it cited networks that had broadcast "fleeting" expletives, for example when Bono decided to call his Golden Globe "really f*cking brilliant." In the past, the FCC had not punished single, unscripted uses of such terms.
Much of the discussion during oral argument had to do with administrative law, and makes it sound like the Court may send the case back on those grounds, allowing it to avoid the First Amendment questions. But at argument the constitutional questions did come up, of course, which provided a reason for everyone to debate the use of expletives.
Defending the new policy, the Solicitor General said the agency had good reasons for deciding to classify "fleeting expletives" as indecent, at least depending on context. As an example, he said that there was "an element of pandering" in the Paris Hilton-Nicole Richey exchange in 2003 in which both the F-Bomb and the somewhat less powerful S-Bomb were dropped. "Pandering" appeared to mean that they had set out to be provocative. Justice Stevens asked whether it was different if the F-Bomb was used with no reference to its sexual connotations, but the SG argued that the word "inevitably conjures up a core sexual image." "Which is, indeed, why it's used," chimed in Justice Scalia helpfully.
The SG painted a terrifying picture of how the world might look if the Court ruled in favor of the networks, saying they would be free to broadcast expletives 24 hours a day, "going from the extreme example of Big Bird dropping the F-Bomb on Sesame Street, to the example of using that word during Jeopardy . . . ." I'll take Stupid F*&#ing Arguments for $1000, Alex. Those are strange examples for a number of reasons, not the least of which is that if anybody on Sesame Street would do that, obviously it would obviously be Oscar the Grouch, not Big Bird. I guess it's been a while since the Solicitor General saw an episode of Sesame Street. Or maybe it's changed quite a bit since I saw one, but I doubt it's changed that much since last week.
There was an exchange as to whether it was okay to be indecent if the indecency was sufficiently funny. "Maybe I shouldn't ask this," began Justice Stevens, which is the kind of statement that makes everybody lean forward to hear what it is somebody shouldn't be saying:
but is [it] ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny?
Some of these things you can't help but laugh at. Is that -- is that a proper consideration, do you think?
[Solicitor General]: Yes, insofar as the Commission takes into account whether it's shocking, titillating, pandering --
JUSTICE SCALIA: Oh, it's funny. I mean, bawdy jokes are okay if they are really good.
The Legal Times described Scalia's tone as "sarcastic," but his meaning still seems a little unclear. The answer to Stevens's question, of course, is "yes, it matters."
Fox was represented by Carter Phillips of Sidley Austin. Phillips had said prior to argument that he would be using the actual expletives before the Court "unless otherwise instructed," as did the attorney in the famous "F*ck the Draft" case years ago. As it turned out, though, everyone chickened out and used euphemisms instead. The best exchange during Phillips's time was the argument over exactly why the F-Word is considered shocking:
MR. PHILLIPS: Well, all that [prior case law] says is that you cannot immediately jump -- you -- it wouldn't even remotely strike you that the reason the language is being used is for its particular sexual meaning.
CHIEF JUSTICE ROBERTS: Then why -- why do you think the F-Word has shocking value or emphasis or force?
MR. PHILLIPS: The same reason the S-Word does; it's because in some circles it is inappropriate.
CHIEF JUSTICE ROBERTS: Because it is associated with sexual or excretory activity. That's what gives it its -- its force.
MR. PHILLIPS: I mean, I -- to say that, I suppose you can say it, but I don't understand on what
basis. There is no empirical support for that. There's no --
JUSTICE SCALIA: Of course there is.
MR. PHILLIPS: -- anything in the record that remotely suggests that.
JUSTICE SCALIA: Don't use golly waddles instead of the F-Word.
Scalia seems to have coined the term "golly waddles." Whether it will help or hurt his record as Funniest Justice is hard to say.