The High Court Debates 'Fleeting Expletives'
November 4, 2008 at 5:11 AM (PT)
The debate was colorful, if not profane, during arguments over the FCC's "fleeting expletives" case at THE SUPREME COURT. According to the LOS ANGELES TIMES, the questioning of a majority of Justices indicated that a larger number of them were siding with the networks.
Supporting the FCC arguments the most were Chief Justice JOHN G. ROBERTS and Justice ANTONIN SCALIA. The latter blamed broadcasters for "coarsening" of society. "I'm not persuaded by the argument that people are more accustomed to hearing these words than they were in the past," SCALIA said.
the free-speech ramifications of this issue [is] "the big elephant in the room.
"Coarsening Of Society"
ROBERTS largely supported the notion of protecting children from such language, but did differentiate between something CHER said during the BILLBOARD MUSIC AWARDS, and something blurted out at a live football game. Scalia blamed the broadcasters in general for the "coarsening" of society. "I'm not persuaded by the argument that people are more accustomed to hearing these words than they were in the past," he said.
On the other hand, other JUSTICES cited the discrepancies in the FCC rulings and the arbitrary nature in determining what words were indeed profane. Justice JOHN PAUL STEVENS brought up derivations of the F-word that can be "very funny" and wondered which other words that refer to sex or excrement should be banned. "Do you think use of the word 'dung' would be indecent?" he asked the government lawyer representing the FCC. No, the lawyer argues, because it's not as "patently offensive" as the S-word.
"No Rhyme Or Reason"
While the Chief Justice asserted that the F-word is always associated with sexual activity, which lends to its shock value, Justice RUTH BADER GINSBURG disputed that argument, noting that the FCC has "no rhyme or reason" to its rulings. Case-in-point: The loud cursing in "Saving Private Ryan" was deemed permissible, but not when musicians used the same verbiage in the documentary "The Blues."
She also reminded the entire Court of the free-speech ramifications of this issue, describing it as "the big elephant in the room."
However, the key to the decision on this issue may well lie with the several Justices who remained relatively or completely silent during the arguments -- namely, Justices SAMUEL A. ALITO JR. and ANTHONY M. KENNEDY, among others.