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Sunday, June 10, 2007

On "The F-Word", Or, If Beavis And Butt-Head Were Lawyers...

Author’s Note: DIRTY WORDS AHEAD...

The Bush Administration has, as we all know, sought to expand the power of Government and alter the relationship between the Branches in fundamental ways. Those seeking examples need look no further than the reassessment of Habeas Corpus represented in the Military Commissions Act, or Presidential signing statements, or the “warrantless wiretap program”.

Another battle, less well recognized but equally fundamental, has been brewing over the FCC’s sudden reexamination of policies regarding the use of certain “obscene” and “profane” utterances over the broadcast airwaves.

On June 4th, the US Court of Appeals for the 2nd Circuit, based in New York, ruled that the FCC’s new policy exceeded its authority; and the two opinions (majority and dissenting) issued in Fox v. FCC (docket number 06-1760) will be the subjects of today’s discussion.

(Unless sourced otherwise, all further discussion is derived from the Fox v FCC link.)

I warn you once again, there will be offensive words used in this story.
Highly offensive words.

To quote the inimitable Carl Warmenhoven (the Seattle Comedy Underground’s Assistant Manager, or, as he describes himself, the Club’s Ass. Man.), words “strong enough to knock a fuckin’ buzzard off a shitwagon”.

Warnings having been issued; let us plunge ahead.

These kinds of stories always require a background discussion, and the best place to start here is a description of the issues under consideration by the Court.

To make a long story short, the Court was asked by Fox to rule that the FCC’s 2003 decision to change policy and begin imposing punishment for “fleeting expletives” broadcast over the public airwaves was an “arbitrary and capricious” decision that had to be struck down, and the Court agreed to do so.

Fox also asked the Court to address six other statutory and Constitutional questions related to the FCC’s authority to regulate “indecent” speech.

The Court declined to rule on those questions. Instead a statement was included in the majority ruling that is intended as a guide to the majority’s state of mind regarding the additional issues. The guidance (known as “dicta”, or the plural “dictum”) does not have the “force of precedent” of a ruling, as we will discuss below.

The likely outcome of the ruling is to return the state of the law to where it was before 2003, when “fleeting expletives” were not subject to punishment.

Having made a long story short, let’s make a long story long, shall we?

While 18 U.S.C. § 1464 requires the FCC to restrict “indecent” speech, the
Communications Act (47 U.S.C. § 326) prohibits the FCC from engaging in censorship, and this balancing act is the real reason for today’s conversation.

The first enforcement effort to restrict broadcast speech was the action launched in 1975 against the Pacifica Foundation, who broadcast, at 2:00 PM, George Carlin’s “Filthy Words” monologue, which was found by the FCC to be “indecent” content.

What, you may ask, is “indecent”?
From the FCC:

“[T]he concept of ‘indecent’ is intimately connected with the exposure of children
to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience. Obnoxious, gutter language describing these matters has the effect of debasing and brutalizing human beings by reducing them to their mere bodily functions, and we believe that such words are indecent within the meaning of the statute and have no place on radio when children are in the audience.”

The order was appealed by Pacifica to the same appeals court whose ruling we are today showcasing. During the appeal, the FCC “clarified” its position to acknowledge that live events can lead to unexpected utterances that can’t be edited, and that in these situations it would be “inequitable for us to hold a licensee responsible for indecent language.”

The Court, however, found the FCC’s position to be censorship.
In their view, the “vague and overbroad” restrictions banned...

“..the uncensored broadcast of many of the great works of literature including Shakespearian plays and contemporary plays which have won critical acclaim, the works of renowned classical and contemporary poets and writers, and passages from the Bible.”

The US Supreme Court, upon review, took a different perspective.

In its presentation to the Supreme Court, the FCC made clear that it did not intend to regulate speech generally using this “indecency” doctrine, merely this particular broadcast of this specific monologue.

As a result, the Court did not choose to address the larger question of generic censorship, but instead whether this ruling was appropriate, as stated above, for this particular broadcast of this specific monologue.

Pacifica unsuccessfully attempted to argue that the content to be banned must be “obscene”, and unsuccessfully presented a First Amendment challenge to the restriction. Both arguments were rejected. Regarding the Constitutional challenge, the Court said:

“...of all forms of communication, it is broadcasting that has received the most limited First Amendment protection...”

To quote the 2nd Circuit’s June 2007 ruling, in reference to the 1975 “Pacifica” ruling:

“...because the broadcast medium is a “uniquely pervasive presence in the lives of all Americans” that extends into the privacy of the home and is “uniquely accessible to children, even those too young to read.”

In finding for the FCC’s right to regulate indecent material, the Supreme Court further...

“...emphasize[d] the narrowness of our holding . . . We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.”

There are limits to this power.
In their concurrence, Justices Powell and Blackmun wrote:

“...[t]he Commission’s holding, and certainly the Court’s holding today, does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by respondent here.” (emphasis added)

The FCC also realized the limit, and in fact FCC Chairman Charles D. Ferris gave a 1978 speech suggesting the Pacifica situation was “about as likely to occur again as Halley’s Comet.”

Halley’s Comet, in the form of Howard Stern, arrived in 1987.

Stern's radically new approach to “naughty broadcasting”, in the FCC's view, required a new regulatory scheme, and the FCC was again up for the task, in the form of The Infinity Order; which basically said broadcast material could be indecent even if it contained none of the “seven dirty words”:

“...indecent speech is language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs. Such indecent speech is actionable when broadcast at times of the day when there is a reasonable risk that children may be in the audience.” (Regents of the Univ. of Cal., 2 F.C.C.R. 2703, at ¶ 3)

Even now, however, the FCC still agreed that repetition is the key to allowing restriction. Here’s a quote from another Pacifica Foundation ruling, 2 F.C.C.R. 2698, at ¶ 13:

“If a complaint focuses solely on the use of expletives, we believe that under the legal standards set forth in Pacifica, deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.”

When this standard was challenged, the Supreme Court found for the FCC, but noted that the:

“...FCC has assured this court, at oral argument, that it will continue to give weight to reasonable licensee judgments when deciding whether to impose sanctions in a particular case. Thus, the potential chilling effect of the FCC’s generic definition of indecency will be tempered by the Commission’s restrained enforcement policy.”

In 2001, a consent agreement caused the FCC to offer further “guidance” regarding this issue:

“...indecent 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.” (emphasis added)

To find material indecent, the FCC, as explained in 16 F.C.C.R. 7999, must make two determinations:

1) Does the material fall within the “subject matter scope of [the] indecency definition – that is, the material must describe or depict sexual or excretory organs or activities”...


2) ...Is the broadcast “patently offensive as measured by contemporary community standards for the broadcast medium.”?

For those a bit vague on the whole “patently offensive” thing, an explanation follows:

“(1) the explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the materials dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.” (16 F.C.C.R. 7999, ¶ 10)

But even in 2001, the Court of Appeals notes: ‘the FCC cited examples distinguishing between material that “dwells” on the offensive content (indecent) and material that was “fleeting and isolated” (not indecent). (The Court is citing 16 F.C.C.R. 7999, ¶¶ 17-18)

And with that, we have completed the “distant history” portion of the story.
Take a moment, stretch, grab a beverage, and come on back.
We still have plenty of good stuff to discuss.

“...this is really, really, fucking brilliant. Really, really, great.”

--Bono, accepting an award at the Golden Globes, January 19th, 2003

That comment, made as part of NBC’s live broadcast, led to “obscene and indecent” content complaints against broadcast licenseholders from, as the Appeals Court puts it: “[i]ndividuals associated with the Parents Television Council”; and thus begins the "modern history" portion of the story.

FCC staff, in the form of the Enforcement Bureau, found no violations. The reasoning was twofold: the word “fuck”, as Bono used it, was not a reference to having sex, nor was it a repeated utterance.

The (politically appointed) FCC Commissioners saw things differently.
In their view:

--Any use of the word “fuck”, or any of its variants, is intended to reference sex, and is therefore indecent.
--The “‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language...”, which means, in the FCC’s view, that any use of the word violates community standards.
--The Commission no longer felt that “fleeting or isolated” mattered when considering these situations:

“While prior Commission and staff action have indicated that isolated or fleeting broadcasts of the ‘F-Word’ such as that here are not indecent or would not be acted upon, consistent with our decision today we conclude that any such interpretation is no longer good law.” (19 F.C.C.R. 4975, at ¶ 12)

--Finally, Bono’s comment was also found to be “profane”. Even though it had always defined profane as “blasphemous” in the past, the Commission ruled it could choose to redefine “profane” if it so desired.

NBC was not sanctioned monetarily, however. From the 2nd Circuit’s ruling:

“...NBC and its affiliates “necessarily did not have the requisite notice to justify a penalty.”...The Commission emphasized, though, that licensees were now on notice that any broadcast of the “F-Word” could subject them to monetary penalties and suggested that implementing delay technology would ensure future compliance with its policy.”

NBC, Fox, and Viacom filed petitions asking for a stay and reconsideration.
Two years later the FCC has not acted on these petitions.
They have, however, chosen to act on the new policy, and have launched enforcement actions based on four incidents:

--“2002 Billboard Music Awards”: This line from Cher‘s acceptance speech was considered a violation: “People have been telling me I’m on the way out every year, right? So fuck ‘em.”
--“2003 Billboard Music Awards”: A violation occurred when, in a reference to her role on the show “The Simple Life” Nicole Richie, presenting an award on the show, stated: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
--“NYPD Blue”: The words bullshit,” “dick,” and “dickhead”, as uttered by Detective Andy Sipowitz and other characters on various occasions created violations.
--“The Early Show”: A contestant on CBS’s reality show “Survivor: Vanuatu” broke the rules by referring to a fellow contestant as a “bullshitter” in a live interview.

In ruling on the complaints generated by the above incidents, the FCC gave “shit” the same status as “fuck”-that any use of the word is, by presumption, indecent and profane.

As you might imagine, lawsuits were filed all around, and the FCC issued further revised guidelines in November 2006.

Under the newest rules, “fuck “ and “shit” were still out of bounds, but “dick”, “dickhead”, and “bullshitter” were all fine.

Why? This, from the 2nd Circuit:

“...With regard to the 2003 Billboard Music Awards, the Commission found that it would have been actionably indecent even prior to the decision in Golden Globes because the potentially offensive material was “repeated,” since Nicole Richie used “ two extremely graphic and offensive words,” and was “deliberately uttered” because of “Ms. Richie’s confident and fluid delivery of the lines.” (emphasis added.)

On the other hand, NYPD Blue aired after 10PM, which the FCC currently allows, and “The Early Show’s” incident was part of a news broadcast, which is considered by the FCC to be exempt.

The newest rules created a further series of lawsuits, and that brings us to the decision we are discussing today.

The FCC has asked the Court to confine its review to an examination of the two specific Billboard Awards Shows and not to the question of content regulation generally, but in oral arguments agreed that this was an issue the Court had jurisdiction to address, and that request was denied.

The Court of Appeals has been asked by the broadcasters to determine that:

(1) the Remand Order is arbitrary and capricious because the Commission’s regulation of “ fleeting expletives” represents a dramatic change in agency policy without adequate explanation ;
(2) the FCC’s “community standards” analysis is arbitrary and meaningless;
(3) the FCC’s indecency findings are invalid because the Commission made no finding of scienter;
(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;
(7) the FCC’s indecency regime is an impermissible content-based regulation of speech that violates the First Amendment.

The Administrative Procedures Act (5 U.S.C. § 706(2)(A)) says that Courts will set aside agency decisions if they are found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” To quote the Supreme Court:

““The scope of review under the ‘arbitrary and capricious’ standard isnarrow and a court is not to substitute its judgment for that of the agency. Nevertheless, the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.’”

--Motor Vehicle Mfrs. Association of U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43 (1983)

Further quoting the Supreme Court, an action is arbitrary and capricious:

“if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise...”

...also, a court, in review...

... “may not supply a reasoned basis for the agency’s action thatthe agency itself has not given.” (SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

Basically, the broadcasters claim the FCC made a 180-degree change in policy regarding these “fleeting expletives” since 2003, and the Court's majority agreed completely.

The broadcasters also claim there was no basis articulated by the FCC for this change, and the court again agreed with that claim. From the 2nd Circuit’s majority opinion:

“Agencies are of course free to revise their rules and policies. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 863 (1984) (“An initial agency interpretation is not instantly carved in stone.”). Such a change, however, must provide a reasoned analysis for departing from prior precedent.

As this court has explained: [W]hen an agency reverses its course, a court must satisfy itself that the agency knows it is changing course, has given sound reasons for the change, and has shown that the rule is consistent with the law that gives the agency its authority to act. In addition, the agency must consider reasonably obvious alternatives and, if it rejects those alternatives, it must give reasons for the rejection, sufficient to allow for meaningful judicial review...

...Even in the absence of cumulative experience, changed circumstances or judicial criticism, an agency is free to change course after reweighing the competing statutory policies. But such a flip-flop must be accompanied by a reasoned explanation of why the new rule effectuates the statute as well as or better than the old rule...

...The primary reason for the crackdown on fleeting expletives advanced by the FCC is the so-called “first blow” theory described in the Supreme Court’s Pacifica decision. In Pacifica, the Supreme Court justified the FCC’s regulation of the broadcast media in part on the basis that indecent material on the airwaves enters into the privacy of the home uninvited and without warning...

...”To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow.” (438 U.S. at 748-49)...

... We cannot accept this argument... the “first blow” theory bears no rational connection to the Commission’s actual policy regarding fleeting expletives. As the FCC itself stressed during oral argument in this case, the Commission does not take the position that any occurrence of an expletive is indecent or profane under its rules.”

As an example, the Court noted that a broadcast of the very material that caused the enforcement actions in the first place would be perfectly legal in the context of explaining the issues in the case, even though the material might be seen by unsupervised children-the very risk the FCC says cannot be accepted if the program if the program is shown for entertainment purposes.

Then the Court resolves this question:

“The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. 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.” Remand Order, at ¶ 23…

…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…

…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.””

The Court then reminds us that Dick Cheney once told Patrick Leahy, on the floor of the US Senate, to “fuck himself”, presumably with the full knowledge of both parties of the impossibility of carrying out the instruction in a literal way. Mr. Bush’s own well-known comment to Mr. Blair suggesting the UN needs to “get Syria to get Hezbollah to stop doing this shit” (and again, we assume Mr. Bush was aware Hezbollah, as a viability-impaired entity, cannot take a shit), was also offered as such an example.

Next, the Court disposes of the FCC’s claim that fuck and shit are so offensive in their implied meaning that any use of the word, in any form, invokes these deeper sexual and excretory meanings; which has required the FCC to adopt the new policy regarding “fleeting expletive” enforcement.

It does so by dismissing the claim for lack of proof, and here the Majority Justices directly attack the Dissent’s reasoning for the need to act on the agency’s claims by suggesting that since the FCC is required to provide proof of the logic behind its analysis, and has failed to provide any, the FCC’s position cannot be supported no matter how much the Dissent Justice may agree with the Agency’s reasoning.

Further, the Court dismisses the FCC’s argument that failure to act will cause the airwaves to be filled with expletives by again citing the fact that the FCC offered no evidence to support their claims, a position to which the Dissent does not subscribe.

As regards the “redefinition” of profanity attempted by the FCC:

“The Commission’s new approach to profanity is supported by even less analysis, reasoned or not. The Commission sets forth no independent reasons that would justify its newly-expanded definition of “profane” speech, aside from merely stating that its prior precedent does not prevent it from setting forth a new definition… Furthermore, the Commission fails to provide any explanation for why this separate ban on profanity is even necessary. Prior to 2004, the Commission never attempted to regulate “profane” speech. In fact, the Commission took the view that a separate ban on profane speech was unconstitutional.”

The Majority Opinion also finds this new, actionable definition of profanity “largely (if not completely) redundant with its [the FCC’s] indecency prohibition”.

Having found no evidence to support the FCC’s new analyses and changed positions, the Court chose to “grant the petition for review, vacate the order of the FCC, and remand the case for further proceedings consistent with this opinion.”

Because the Court could dispose of the matter without ruling on the merits of the remaining Constitutional issues presented by the broadcasters, there is no ruling made regarding these questions.

We are at the 2/3 point of the discussion, and it’s time for another intermission.
I’ll be back after a short stretch, and I encourage you to do the same.
We will continue with the dictum from the Majority, and some further comments regarding the Dissent.

I have broken up a cinnamon stick into a big mug of apple cider, and I’m feeling much refreshed, and I hope you are as well. That having been said, it’s time to continue this particularly long story with a discussion of the Majority’s dicta.

The Majority Opinion anticipates the possibility that the FCC will simply develop a series of explanations to justify these actions, with no policy changes, in an effort to overcome this Opinion. The Justices further anticipate that the broadcasters will once again be heading to court, and they offer a series of observations “in the interest of judicial economy”.

The basic point to be made here is that the Court feels any effort to continue this policy is doomed to fail Constitutional analysis.


Because the Government cannot “identify a compelling interest for any Regulation”, nor is this solution “the least restrictive means to further that interest.”

The Opinion also reminds us that all the speech the FCC proposes to regulate as indecent is First Amendment protected-that a finding of “obscene” is required to restrict speech. Here’s more:

“…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 use of numerous expletives was “integral” to a fictional movie about war, Saving Private Ryan…but occasional expletives spoken by real musicians were indecent and profane because the educational purpose of the documentary “could have been fulfilled and all viewpoints expressed without the repeated broadcast of expletives,” Omnibus Order, 21 F.C.C.R. 2664, at ¶ 82 (finding Martin Scorsese’s PBS documentary “The Blues: Godfathers and Sons” indecent)…

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…

… 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
. 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. It appears that under the FCC’s current indecency regime, any and all uses of an expletive is presumptively indecent and profane with the broadcaster then having to demonstrate to the satisfaction of the Commission, under an unidentified burden of proof, that the expletives were “integral” to the work…”

Additionally, the Court reminds us that the FCC’s rationale that broadcast media reach into the home in a unique way, therefore justifying a more “strict scrutiny” position may no linger be justified. The Court reminds us that satellite, cable and the Internet have ended broadcasting’s days as the sole source of sound and pictures delivered to the home. Further, the Court notes, less restrictive options to censorship of content exist, including the V-chip and channel blocking, to prevent any owner of a TV set receiving broadcast signals from having to view any undesired content.

If all that wasn’t enough, the Court wants the FCC to know that the attempt to redefine “profane” seems similarly unfounded. It is not accepted practice to have two terms with the same definition and separate sanctions (in this case “indecency” and “profanity”); nor is the Court sympathetic to the FCC’s desire to alter the traditional connection between “profane” and “irreligious” speech.

Now to Justice Leval’s Dissent:

To be blunt, I find this Dissent unimpressive.

The Justice does not feel the FCC needs to provide evidence of a change in community standards to justify a change in their measure of community standards, for example; finding instead that the announcement of new standards is sufficient. Then there’s this:

“The majority is of course correct that the Commission does not follow an all-or-nothing policy. Its standards do attempt to draw context- based distinctions, with the result that no violation will be found in circumstances where usage is considered sufficiently justified that it does not constitute indecency…This, however, is in no way a consequence of the Commission’s change of standard for fleeting expletives. It applies across the board to all circumstances… If there is merit in the majority’s argument that the Commission’s actions are arbitrary and capricious because of irrationality in its standards for determining when expletives are permitted and when forbidden, that argument must be directed against the entire censorship structure….”

The Dissent is concerned that the broadcasters will, if allowed the freedom that existed before 2003, flood the airwaves with indecent material:

“The majority’s view presupposes that the future would repeat the past. It argues that because the networks were not flooded with discrete, fleeting expletives when fleeting expletives had a free pass, they would not be flooded in the future. This fails to take account of two facts. First, the words proscribed by the Commission’s decency standards are much more common in daily discourse today than they were thirty years ago. Second, the regulated networks compete for audience with the unregulated cable channels, which increasingly make liberal use of their freedom to fill programming with such expletives. The media press regularly reports how difficult it is for networks to compete with cable for that reason.

It seems to me the agency has good reason to expect that a marked increase would occur if the old policy were continued. In any event, even if the majority could reasonably label this aspect of the Commission’s reasoning “arbitrary and capricious,” it still would not matter. The agency’s action in changing the standard for fleeting expletives did not depend on the defensibility of this prediction. It is at most a small part of the agency’s justification for its action.”

The Dissenting Judge, however, ignores the requirement of the Administrative Procedures Act to provide evidence to support the new FCC position. You may recall that the Majority felt this was one of the major problems with the FCC’s arguments, and I see no more compelling response.

Speaking of compelling…

…in the earlier referenced consent 2003 consent decree, the FCC agreed “…indecent 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.” (emphasis added)…

…and this is how the Dissent supports the new restriction on “profane” speech:

“In explanation of this relatively modest change of standard, the Commission gave a sensible, although not necessarily compelling, reason… the Commission did not mean that every speaker who utters the word
invariably intends to communicate an offensive sexual meaning. The Commission explicitly recognized that the word can be used in a manner that does not intend a sexual meaning.

A fairer reading of the Commission’s meaning is that, even when the speaker does not intend a sexual meaning, a substantial part of the community, and of the television audience, will understand the word as freighted with an offensive sexual connotation. It is surely not irrational for the Commission to conclude that, according to the understanding of a substantial segment of the community, the F-Word is never completely free of an offensive, sexual connotation.”

If this is the FCC’s position, where is the research documenting the “substantial segment of the community” that has been demanding these new rules?

Now here’s where it gets weird:

“As each of the instances under review in this case involved the use of the F-Word, and because I find that the Commission has given a rational justification for its rule as applied to use of the F-Word, I do not consider the Commission’s standard which makes it a decency violation to use the word “shit.” In Pacifica, in upholding the constitutionality of censorship under § 1464, the Supreme Court stressed the accessibility of broadcasting to children…

…The potential for harm to children resulting from indecent broadcasting was clearly a major concern justifying the censorship scheme. In this regard, it seems to me there is an enormous difference between censorship of references to sex and censorship of references to excrement. For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement.”

That’s right, folks, we have an Opinion that tells us that when it comes to broadcasting over the public airwaves, playing with poo-poo is OK, but playing with your pee-pee is bad.

It’s because I hate this foolish, tortured logic that I respect the beauty and simplicity of the First Amendment, which is why I’m happy the majority seems to have the legal “wind at their backs” in this case.

Well, folks, here we are at the end of the story-for now.

The case could be heard by the US Supreme Court if the FCC appeals; or it could rise through the administrative rulemaking process, and be heard again by this Court some distant day.

In any event, that was a lot of fuckin’ shit to read, wasn’t it?

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