High court hijinks: Supremes get creative in FCC indecency decision
Supreme Court decisions are usually thick and dense, with lots of big words and page after page devoted to citings of precedent.
But there are always a few quotable turns of phrase, a few zingers and bits of nastiness between the majority and the dissent in every decision that make them worth slogging through. Tuesday's decision in the Fox vs. FCC indecency case -- which turned on the question of whether broadcasters should be liable for the random F-bomb and other curse words that slip through on live broadcasts -- is no exception.
(For a primer, read Variety's story on the ruling, and read Brian Lowry's spot-on analysis of why the idea of the FCC policing the broadcast airwaves is wrong-headed and anachronistic. If you're really game, read the decision yourself.)
There's the cheap thrill of reading the Supremes parse the question of whether Nicole Richie and Cher were invoking "literal or nonliteral" uses of the words fuck, fucking and shit. Richie's was definitely literal in her lament on the 2003 Billboard Music Awards telecast: "Have you ever tried to get cow shit out of a Prada purse? Not so fucking simple." Cher, on the other hand blurred the lines in the 2002 edition of the same kudocast: "So fuck 'em," she said of critics who have long predicted her professional demise.
There's also the purple prose that justices just can't seem to resist, especially when writing about a media-related decision that will be widely read -- and quoted -- by the media. And then there's the nyah-nyah-nyah my-opinion-is-better-than-yours justice-on-justice verbal violence. To wit:
From Justice Antonin Scalia's majority opinion:
"Cher's statement was patently offensive in part because she metaphorically suggested a sexual act as a means of expressing hostility to her critics." (Scalia pictured left)
From a footnote bashing the dissenting opinion by Justice Stephen Breyer:
"That strange and novel disposition would ... be better termed the doctrine of judicial arm-twisting or appellate review by the wagged finger."
Scalia says: Beware of future generations of swearing tykes:
"There are some propositions for which scant empirical evidence can be marshaled, and the harmful effect of broadcast profanity on children is one of them...Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives."
Scalia craps all over Breyer's argument that small-town TV stations may not be able to afford the technology to bleep words out of live broadcasts:
"In programing 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 the foul-mouthed glitteratae from Hollywood."
And the most unsettling Scalia salvo of all, about reviewing indecency policy in light of the vast expansion of the media landscape since the "Seven Dirty Words" ruling was issued in 1978:
"The (FCC) could reasonably conclude that the pervasiveness of foul language,and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children."
And now, not-so-respectfully, from the dissent:
Justice Stephen Breyer marveling at the FCC's shortcomings in explaining its shift in policy on fleeting expletives:
"They do not explain the transformation of what the FCC had long thought an insurmountable obstacle into an open door. The result is not simply Hamlet without the prince, but Hamlet with a prince who, in midplay and without explanation, just disappears."
Justice John Paul Stevens' response to Scalia's discussion of the direction the FCC received from Congress about its interest in cracking down on indecency:
"Scalia's treatment of these proceedings as evidencing the intent of Congress would make even the most ardent student of legislative history blush."
Oh the hypocrisy. Stevens gets the "gotcha" honor with this keen-eyed observation:
"It is ironic, to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they too are battling erectile dysfunction or are having trouble going to the bathroom."
Variety's Team TV -- Cynthia Littleton, Stu Levine, Jon Weisman, Andrew Wallenstein and A.J. Marechal -- provides a roundup of stories big and small, as well as opinions and analysis from across the TV dial.
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