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Jeff Jarvis Headshot

The First Amendment Wins One

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It does my democratic heart good to see the system work, as it did yesterday when an appeals court defended the First Amendment in the face of the FCC's "arbitrary and capricious" attempt to punish Fox for the fleeting expletives.

The most entertaining aspect of the decision: The court agreed with the networks' defense, in part, that if George Bush and Dick Cheney can get away with saying no-no words, then why shouldn't Cher, Nicole Richie, and the rest of us? Said the court:

Similarly, as NBC illustrates in its brief, in recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced "sexual or excretory organs or activities." . . . (citing President Bush's remark to British Prime Minister Tony Blair that the United Nations needed to "get Syria to get Hezbollah to stop doing this shit" and Vice President Cheney's widely-reported "Fuck yourself" comment to Senator Patrick Leahy on the floor of the U.S. Senate).

It also does my heart good to see babyfaced FCC Chairman Kevin Martin having a hissy fit of cursing over the ruling. His official statement:

Today, the Second Circuit Court of Appeals in New York said the use of the words "fuck" and "shit" by Cher and Nicole Richie was not indecent.

I completely disagree with the Court's ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that "shit" and "fuck" are fine to say on broadcast television during the hours when children are most likely to be in the audience.

The court even says the Commission is "divorced from reality." It is the New York court, not the Commission, that is divorced from reality in concluding that the word "fuck" does not invoke a sexual connotation.

These words were used in prime time, when children were watching. Ironically, the court implies that the existence of blocking technologies is one reason the FCC shouldn't be so concerned. But even a vigilant parent using current blocking technologies such as the V-Chip couldn't have avoided this language, because they rely on the program's rating, and in this case the programs were rated appropriate for family viewing.

If ever there was an appropriate time for Commission action, this was it. If we can't restrict the use of the words "fuck" and "shit" during prime time, Hollywood will be able to say anything they want, whenever they want.

No, Mr. Martin. What you say is bullshit. It's fucked up. It's fucking stupid. I wish you would stay the fuck away from our First Amendment.

There is absolutely nothing sexual or scatological in what I've just said -- first, because I can't imagine saying anything involving Kevin Martin that is in any way sexual (though I guess some might say he's kinda cute), and second because what I have just made is a political statement. Here is my defense of bullshit as political speech a year ago. It's just plain wrong to say that these words are sexual. And it's worse for a government official to put himself in the position of judging our meaning, motive, and context to see what he will allow as a government censor. They're just words, Mr. Martin. And the world did not collapse when you used them.

The decision makes what could be a number of important steps against the FCC's power to censor broadcast.

The networks and other challengers put up a number of arguments against the FCC, most important among them:

. . . (2) the FCC's "community standards" analysis is arbitrary and meaningless; . . . (4) the FCC's definition of "profane" is contrary to law; (5) the FCC's indecency regime is unconstitutionally vague; (6) the FCC's indecency test permits the Commission to make subjective determinations about the quality of speech in violation of the First Amendment; and (7) the FCC's indecency regime is an impermissible content-based regulation of speech that violates the First Amendment."

The court simply did not buy the FCC's argument that some words are necessarily sexual, execratory, and indecent.

For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is "difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions." This defies any common-sense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any "sexual or excretory" meaning. Bono's exclamation that his victory at the Golden Globe Awards was "really, really fucking brilliant" is a prime example of a non-literal use of the "F-Word" that has no sexual connotation.

In other words, the court calls bullshit.

And the court takes into account the mores of our time, rejecting the FCC's attempt to dial us back to Little House on the Prarie. The sticks-and-stones clause:

The FCC's decision, however, is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation. Such evidence would seem to be particularly relevant today when children likely hear this language far more often from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech. Yet the Remand Order provides no reasoned analysis of the purported "problem" it is seeking to address with its new indecency policy from which this court can conclude that such regulation of speech is reasonable.

In other words, today you can hear these words on playgrounds or the Senate floor. What's the big deal?

Though the court declines to make a constitutional ruling on this, it nonetheless gives the FCC a good preview of what the courts will say regarding First Amendment protections of our speech:

. . . we are skeptical that the Commission can provide a reasoned explanation for its "fleeting expletive" regime that would pass constitutional muster. . . .

As an initial matter, we note that all speech covered by the FCC's indecency policy is fully protected by the First Amendment. See Sable Commc'ns v. FCC . . . (noting that speech "which is indecent but not obscene is protected by the First Amendment"); Industry Guidance, . . . ("[I]ndecent speech is protected by the First Amendment, and thus, the government must both identify a compelling interest for any regulation it may impose on indecent speech and choose the least restrictive means to further that interest."). With that backdrop in mind, we question whether the FCC's indecency test can survive First Amendment scrutiny. For instance, we are sympathetic to the Networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent, and consequently, unconstitutionally vague. Although the Commission has declared that all variants of "fuck" and "shit" are presumptively indecent and profane, repeated use of those words in "Saving Private Ryan," for example, was neither indecent nor profane. And while multiple occurrences of expletives in "Saving Private Ryan" was not gratuitous, . . . a single occurrence of "fucking" in the Golden Globe Awards was "shocking and gratuitous," . . .

The court goes on to point out the inconsistency of the FCC allowing bad words from white soldiers on Saving Private Ryan but penalizing black musicians for saying them on a PBS documentary.

We can understand why the Networks argue that FCC's "patently offensive as measured by contemporary community standards" indecency test coupled with its "artistic necessity" exception fails to provide the clarity required by the Constitution, creates an undue chilling effect on free speech, and requires broadcasters to "steer far wider of the unlawful zone," . . .

Thank god, they recognized the chill the FCC has put on speech and artistic expression.

They also note, backing up the networks' protest, the Supreme Court's decision striking down the Communications Decency Act, which had tried to regulate our speech on the internet. We should take this, too, as a good sign for our speech here. Says the appeals court:

Because Reno holds that a regulation that covers speech that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs" is unconstitutionally vague, we are skeptical that the FCC's identically-worded indecency test could nevertheless provide the requisite clarity to withstand constitutional scrutiny. Indeed, we are hard pressed to imagine a regime that is more vague than one that relies entirely on consideration of the otherwise unspecified "context" of a broadcast indecency.

As I see it, the appeals court is warning the FCC that if it appeals this ruling to the Supreme Court, it may lose much or all of its power to regulate speech.

Yet another important part of the ruling: The appeals court objects to government making subjective rulings over our speech:

We also note that the FCC's indecency test raises the separate constitutional question of whether it permits the FCC to sanction speech based on its subjective view of the merit of that speech. . . . In the licensing context, the Supreme Court has cautioned against speech regulations that give too much discretion to government officials.

In other words, the government should not be our critic and editor.

Further, the appeals court questions the basis for exempting broadcast speech from the First Amendment's shield, since broadcast is no longer exclusive and pervasive:

The Networks contend that the bases for treating broadcast media "different[ly]" have "eroded over time," particularly because 86 percent of American households now subscribe to cable or satellite services. As the Networks argue, this and other realities have "eviscerated" the notion that broadcast content is, as it was termed in Pacifica, "uniquely pervasive" and "uniquely accessible to children."

The court won't go that far but then adds:

Nevertheless, we would be remiss not to observe that it is increasingly difficult to describe the broadcast media as uniquely pervasive and uniquely accessible to children, and at some point in the future, strict scrutiny may properly apply in the context of regulating broadcast television.

The court then quotes a decision regarding Playboy and finding the least restrictive means of regulating it on cable saying that the issue is a "pillar of free speech, namely choice." My emphases:

When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.

Amen.

(Here also is my Nation cover story on the FCC and its capricious and unconstitutional regulation of speech.)