At least you can still cling to your guns:
Splitting 5-4, the Supreme Court upheld the government’s power under existing law to ban the use on radio and TV of even a single four-letter word that is considered indecent — but left open the question of whether the ban might violate the First Amendment, at least in some situations. The Court, in an opinion by Justice Antonin Scalia, said the Federal Communications Commission’s switch in policy to ban even a fleeting use of such a word was “entirely rational” under the law that governs federal administrative powers.
The opinion referred to the banned words as the “F-word” and the “S-word” but not go on to fill out their actual spelling. Justice Scalia also did not spell them out in his oral announcement of the decision.
Someone explain the ruling, because as we all know, I am clueless when it comes to legal matters.
Punchy
Holy fuck, they banned people from saying “F-word” on TV? Can they still say FUCK?
Seriously? They wrote an opinion but never explicitedly spelled out what in hell they were banning? Say what?
AnneLaurie
‘Little Nino’ Scalia rules that obscene *gestures* in front of the news cameras are good enough for him, and they should be good enough for us too, you ************* *****.
Will
but what about fuuuuurburger?
/Carlin’d
Poopyman
It means that George Carlin is still as relevant as ever, bless him.
IOW, we’re still a nation of prudes about sex. But damn! We’re all hot ‘n sticky when it comes to torture!
b-psycho
It’s simple: they don’t like it, so they feel the State should be able to ban it.
…what, you thought there’d be an actual Constitutional point? That ship sailed a long time ago, if it ever existed. It’s all personal preference, that’s why there’s such a fight with every new vacancy.
Poopyman
Holy Spit! With this decision that means nobody can say “fart” on TV!
Scrooge McDuck
Penis vagina penis vagina penis vagina.
r€nato
you can’t say ‘suck’ on TV?
That… blows.
El Cid
Is it okay to torture someone if they might know when the next F-word will be used?
Michael
Cue the Lee Greenwood CD. I’m in a mood to listen to ‘Murka’s Wagner……
“Ah’m proud to be ‘Murkan’, where at least Ah knows Ah’m free…….”
jrg
Eliminationist rhetoric is fine. Gay-baiting and thinly veiled racism are both fine. Outright lies are fine. But the word “fucking”? It’s a magical word with infinite power, invented by Satan, which threatens to undermine all that we hold dear.
Unless, of course, that word is followed by the words “Bill Clinton”, then it’s fine, too.
r€nato
They will clean up all your talking in a menace such as this
They will make you take a tinkle when you want to take a piss
And they’ll make you call fellatio a trouser-friendly kiss
It’s the plain situation!
There’s no negotiation!
With the fellows at the freakin’ FCC!
They’re as stuffy as the stuffiest of the special interest groups
Make a joke about your bowels and they order in the troops
Any baby with a brain could tell them everybody poops!
Take a tip, take a lesson!
You’ll never win by messin’
With the fellas at the freakin’ FCC
And if you find yourself with some young sexy thing
You’re gonna have to do her with your ding-a-ling
Cause you can’t say penis!
So they sent this little warning they’re prepared to do the worst
And they stuck it in your mailbox hoping you could be co-erced
I can think of quite another place they should have stuck it first!
They may just be neurotic
Or possibly psychotic
They’re the fellas at the freakin FCC!
Zach
I’m not remotely versed in legal theory, but I can’t possibly see how strict constructionism can be reconciled with a power of the Federal government to regulate speech broadcast over the air. Obscenity as a criminal issue, fine, but not extralegal regulation or whatever you’d call the FCC.
Left Coast Tom
I’m not a lawyer, but it sort of looks to me like they really didn’t decide anything. There isn’t a single opinion that the court was able to agree on (Scalia wrote most of the opinion but not for one part of the judgement), they decided the FCC regulation was within the law but didn’t address whether the law was within the constitution, and sent the mess back to the lower court.
Anton Sirius
Huh. I came here looking for Balloon Juice, and I wound up at the Volokh Comspiracy instead. I must have taken a wrong turn at Albukoiky.
Seriously though, how they issue a ruling without being explicit about the words they meant? What does it say about a Supreme Court justice when they are apparently afraid of language? In a sane world that would be an impediment to their job performance.
Krista
I’m assuming none of you will bother watching Hell’s Kitchen, then, as three-quarters of it will just be bleeping noises.
Good to know that people have their priorities straight. Americans might be losing their jobs en masse, and have no health insurance, and might even lose their homes, but by cracky, at least they don’t have to see boobies or hear the word “shit” on TV.
I’m sure that makes you feel so much better, huh?
Shawn in ShowMe
Maybe so, but I wouldn’t point to 5 votes on the Supreme Court as evidence of it. Those five votes were possible because past Republican presidents, totally out of step with modern culture, put them there.
CapMidnight
It means I’ll never sell the sit-com I wrote about the zany family with Tourette’s. Drat.
NonyNony
@b-psycho:
It never existed. The Court has always – ALWAYS – made decisions based on how the Justices interpret the law and the Constitution. Fortunately, justices have come up through the judicial branch, which puts a strong emphasis on precedent when making decisions. So justices at least have to take the time and effort to make arguments about why they rule the way they do, even if it essentially boils down to “I’m right and here’s why”.
The breakdown of the ruling is exactly what you’d expect – the “Daddy Statists” Scalia, Thomas, Alito, Roberts and Kennedy ruling to protect our precious ears from dirty words while the “liberals” – Ginsberg, Breyer, Souter and Stevens thinking that perhaps things aren’t so cut and dried. I really like how the Daddy Statists are all about States Rights and Original Intent and Strict Constructionism except for when they’re not – at least the “liberal” wing is reasonably honest about how they go about interpreting the law. I like this quote from Stevens:
Heh. The whole basis for the FCC’s rule is flawed and everyone on that Court knew it. But the Daddy Statists are just soooo worried that someone’s precious ears might get burned.
DBrown
A.Spector may be switching parties (to democratic)! That will give the Dems a 60th seat!
Too late …
TR
But not, one presumes, “foul-mouthed vice presidents from Wyoming.”
r€nato
Arlen Specter’s switching parties.
Once Al Franken is seated… 60 votes, motherfuckers.
OniHanzo
Pffft. It means whatever the fuck we want it to mean, pinko. When was that not ever so?
Rosali
Arlen Spector switching to a Democrat
J.A.F. Rusty Shackleford
Hey now – I had the radio on low but I could have swore I just heard news that Spector is jumping to the Democrat party.
Holy schnikes! Ed Shultz just confirmed it!
Zifnab
In a country of laws, some asshole lawyer could mangle the everliving fuck out of that interpretation and an asshole judge would uphold it, just to prove a point.
But the laws are totally arbitrary. So corporate wingnut media can go on race-baiting and Glenn Becking to its hearts content while our brave SCOTUS courts debate what an awards show winner can say in a five second blurb on network TV.
Land of the free and home of the brave, folks. Now excuse me while I untwist my panties.
slag
Simple. You know that asterisk at the end of the first amendment, which leads to a footnote that says: “Amendment null and void when in conflict with a really strong desire to protect the childr’n!”? It’s the same one next to the fourth amendment that enables strip-searching kids in public schools.
Scruffy McSnufflepuss
Now that America has pleased the Lord by keeping obscenities off of the airwaves, God will surely bless us by restoring our economy and helping us win the war on Terror.
If only these homosexuals would spend more time in church praying and less time getting married, America would already be back on economic track.
harlana pepper
Specter switches parties! (per CSPAN)
Whuhh? Please explain, o wise bj’ers. What did I miss, other than repubes being royally fuqued, now?
countZ
Law student chiming in. The ruling is very narrow, not really a Constitutional case. The short-short version: the FCC has the authority to regulate swearing on the air, and followed all the proper procedures when creating the regulation. The Court didn’t decide whether the regulations were Constitutional or not.
omen
how was it cheney was able to get away with telling leahy to fuck off on the senate floor without even suffering censure?
i’m pretty sure the senate has rules against that kind of thing.
Zifnab
@Rosali: I’m not sure whether to laugh or cry. At least Evan Bayh will have company.
Can we get the ladies of Maine in on this too? Why even dick around?
JenJen
Specter!! Holy shit!!
PeakVT
Spector’s switch is going to push Republican rage up at least two notches. I suggest that he beef up his security detail ASAP.
And he damn well better support EFCA and health care reform, or he should be primaried.
Kathy
Totally OT but important, MSNBC is saying that Arlen Specter is leaving the wing-nuts behind and becoming a Democrat, not running as an independent. This is huge, I am not sure if it is good or not, it does confirm the total dissent of the GOP into the party of Rush. Who is next?
sparky
well, based on my skim of Scalia’s opinion, this doesn’t really decide anything other than the second-tier question–which will be important in lots of other cases–about the level of review under the APA when the subject touches on a constitutional question. all he did was say that the FCC’s action in changing the rules under the Bush administration was not arbitrary and capricious. whether the FCC’s action can survive on First Amendment grounds was reserved for another day.
in other words, it was ok for Bush to stack the seats at the FCC in a fashion that produced a demonstrably stupid policy to please control freaks. there are vast swathes of regulation where the gov’t can be as stupid as it wants to be–so long as it does the stupid the right way. this is one of those times. that it touches on an area that normally has higher scrutiny (speech) is apparently not relevant for administrative review.
r€nato
I would like to take a break from the latest bout of ponies too cheap to meter, to thank the Club for Growth for all they’ve done to help the Democratic party by running far-right Republicans against moderate Republicans.
Keep up the good work, guys!
John PM
@Zach: #13
It is an interesting conundrum, because on the one hand strict constructionists should be opposed to most (if not all) federal agencies such as the FCC, but on the other hand the FCC is banning things that offend their delicate sensibilities. In that regard, the Court’s decision is in line with its previous decision that federal laws regarding drugs trump a state’s ability to legislate regarding medical marijuana.
omen
@harlana pepper:
yeah, where are they hearing that?
Poopyman
Specter switching parties (reported in WaPo and Post-Gazette) was nearly a foregone conclusion anyway.
I sure hope the Dem leadership got some leverage on his votes, but knowing the Dem leadership, I’m not hopeful.
CapMidnight
The penis mightier than the S-word?!
TR
If Specter could dream up the magic bullet theory, it’s clear he can bounce wherever he likes.
omen
maybe that’s what specter and biden were in huddle talking about. back in late february.
photo:
http://my.barackobama.com/page/community/post/obamaforamerica/gGxN9z
John PM
Clearly the Spector decision to switch to the Democratic Party is at base an attempt to keep his seat and to avoid losing a Republican primary to a total nut job. Assuming that no one runs against Spector in the Democratic primary and he thus retains his seat, what does the Democratic Party gain? What guarantees are there that Spector does not become the biggest Blue Dog and cause more trouble than he is worth?
harlana pepper
Ah, got it.
JK
Brief summaries of SCOTUS ruling on dirty words
Divided court upholds FCC indecency fines
http://otd.oyez.org/articles/2009/04/28/divided-court-upholds-fcc-indecency-fines-april-28-2009
Supreme Court upholds FCC ban on isolated expletives
http://jurist.law.pitt.edu/paperchase/2009/04/supreme-court-upholds-fcc-ban-on.php
Court partly upholds “dirty words” ban
http://www.scotusblog.com/wp/court-upholds-dirty-words-ban
harlana pepper
sorry, omen, i stay out of the loop a lot these days
well, it’s funny as shit, anyways
omen
what are the dems senate numbers now? including franken, sanders and lieberman.
JL
Holy s, f and s on Spectre… Wahoo what will the whackos say now
fyi, I always like to bless my swear words.
Dennis-SGMM
The Supremes’ decision in this case is downright ludicrous coming as it does from a court that found it debatable whether or not school administrators should be legally able to strip search children of the opposite sex.
TR
59-40 I believe. 60-40 with Franken.
r€nato
@omen:
60, when Franken gets seated.
Dennis-SGMM
@r€nato:
Harry Reid could have 90 Senators and he still wouldn’t have a filibuster-proof majority.
neff
I think it’s interesting that Scalia chose to write “glitteratae” when the word is usually “glitterati”. I can’t see this as anything but a signal that either he hates it more when women curse or that he thinks women are more likely to curse on TV.
JenJen
This Specter thing is making me think that Jim Bunning’s going to be the next Republican Senator to call McConnell’s bluff. That loon has been quite vocal with his threats.
Of course, I want nothing to do with Jim Bunning, but you gotta love the PR pickle the GOP just landed in. ;-)
omen
@John PM:
What guarantees are there that Spector does not become the biggest Blue Dog
did a quick google. looks like specter supports renewable energy proposals. he’s talked about the need to tackle climate change.
http://watthead.blogspot.com/2009/04/senator-specter-kicks-off-nationwide.html
and it’s hard for me to believe he would be obstructionist against healthcare reform after the illnesses he’s gone through.
sure enough. this looks like positive indication:
As part of the stimulus, Specter supported:
an amendment to the American Recovery and Reinvestment Act resulted in the infusion of an additional $10.4 billion to support the work of the National Institutes of Health, including the National Cancer Institute.
http://www.dailykos.com/story/2009/4/25/724528/-Sen.-Specter-nods-at-healthcare-reform
BobJ
Ugh. Speaking as a democrat, I don’t want Specter. He is an obnoxious, unreliable, worthless empty suit with no core beliefs other than a firm belief in his own self importance and no principles to speak of other than reflexive impulse to grovel to those more power than himself. He and Joe Lieberman should be strapped to a rocket and fired into the sun.
Does anyone think he would actually be a reliable vote on any of issue of importance that was subject to a filibuster?
SGEW
Footnote 4 in Stevens’ dissent:
Hee.
JK
A Tribute to the Supreme Court from The Sopranos
http://www.youtube.com/watch?v=LvMwLgNvX3o&feature=PlayList&p=9F42A0A2E1909359&playnext=1&playnext_from=PL&index=14
timb
what Sparky said at 36. The issue isn’t decency; that already can be regulated. The issue is how can the FCC change its interpretation of the rules. The FCC decided once Janet Jackson’s nipple appeared on TV that ‘Merican civilization would be destroyed if more nipples were seen. Colin Powel’s retarded son decided that meant getting tough on everything and proposed enormous stupid fines. The TV networks sued arguing regulation under the APA cannot arbitrary or capricious. The Court said this wasn’t a rule change; it was a increase in fines.
They’re nuts, of course, when you take a nominal fine and increase it a hundred fold, you are, in a de facto method, changing the rules, since the folks subject to the rules will now have to guard against any little thing.
But, the Roberts Court lives in a pretend world where everyone know how much their co-workers get paid (Ledbetter), de facto segregated schools are the intent of Brown v Board of Education, children can be strip searched for Advil without a call to their parents (seeing school administrators as armed guards says a lot for Justice Roberts’s prep school….at least they let him dress in drag), and changing the creative and editing processes from the beginning to the air across the broadcast is not changing the rules…it’s just a change in emphasis.
Bunch of morons.
SGEW
Ok – 1st Amendment issues aside (literally: the issue was not reached, pace Sparky, above) – this is a pretty interesting case on rational standards vs. heightened review grounds.
Gonna take a while to really parse it: I think th’ bombshell in it is much less about free speech than about a freer hand for the justifications of the Executive’s administrative decisions – the more relevant case (viz. Breyer’s dissent) is probably State Farm, rather than Pacifica right? Don’t have the time to really put th’ thought required into it right now.
Tho’ I always appreciate it when Carlin’s 7 words bit is referenced (just watched it again the other night with a friend who had never seen it: he pointed out that you can say “tits” and “fart” on tv now: progress!)
Andrew
Well, frak me.
Comrade Dread
Basically, we get to keep pretending that “Congress shall make no law infringing the freedom of Speech” includes an asterisk clause that allows for a proxy agency to do exactly that in order to protect our children from hearing words that we all like to pretend they don’t use 100 times a day at school with their friends.
someguy
How are we going to muzzle Rush and InsHanitty and Savage, if the fed can’t pay attention to the content of speech on the airwaves? If you care at all about the fairness doctrine and breaking the right wing stranglehold on the media, the FCC needs to be strengthened, Red Lion+ Otherwise, you’re looking at hard to impose and easily litigated against rules like minority and local ownership requirements and whatnot. Better to take the problem on head-on, face one or two big cases and close the deal. And how better to do it than to use the censorship tool that the Republicans left in the office when they got run out? They don’t have a leg to stand on in the argument for free speech, since they were against it whenever it wasn’t pro-Republican speech. Thanks Nino!
Victory
Well….F-word means Fuck.
S-word means Shit.
Does that help?
KG
Here’s the thing, broadcasters were given licenses to the airwaves many years ago. The airwaves are considered “public domain” and, the rational goes, the federal government has the power to regulate the content thereon. From a First Amendment point of view, this is incredibly troubling. However, this case wasn’t about the First Amendment (bad, or more likely cautious, lawyering, that), it was about the power of the federal government under the Administrative Powers Act (APA). The APA is basically the governing law for all administrative agencies, written early in the New Deal era as the federal government was expanding.
I’ve only briefly looked at the opinion (have to do real legal work that will result in me getting paid), but this also looks like a case of bad precedent governing (particularly the idea that the FCC rules aren’t triggered by statements appealing to the prurient interest, but instead “nonconformance with accepted standards of morality.”
Also, I’m not sure the networks have the legal standing to raise the First Amendment arguments. Though, I would think that Bono, for his use of the word “fuck” in an acceptance speech, would have a better argument. Likewise a writer on a television show.
Zuzu's Petals
@SGEW:
I dunno. The longstanding rule is that the interpretation of a statute or regulation by an administrative agency charged with its implementation is given deference, unless it can be shown the agency acted beyond its authority or that its decision was arbitrary or capricious.
Sounds like what happened here. SOP.
timb
@someguy: I’m sort of willing to let the market sort Hannity and Limbaugh out. They speak to 15% of the population. We’ll be fine with them or without them. Having the Feds decide”fairness” is not my cup of tea.
chrome agnomen
no one can say F-ox anymore.
Jay Severin Has A Small Pen1s
At least we can still write FUCK and SHIT on the balloon juice comment board.
Hob
The S-word, huh? I could tell you the truth about snot. You want to know the truth? You can’t get snot out of a suede jacket.
Bruce
An opinion (but not a “legal opinion”) from an attorney who specializes in communications issues: [link redacted because I don’t know if he wants his LJ publicly broadcast]:
Also, a related opinion of his, more technical, on how this ruling affects the Comcast case: http://www.publicknowledge.org/node/2123
KRK
@KG:
APA = Administrative Procedure Act
/nitpick
binzinerator
@Punchy:
No shit.
This is a legal opinion? Upon which law will be based? Where they don’t even mention what it is they are talking about? How can we have law proscribing something if the law never states what it is it’s proscribing? How is this possible?
Why are those 5 clowns even on the bench? Fuck them.
binzinerator
@Dennis-SGMM:
This, a million times.
If ever there were a single example of why I so deeply despise conservatives it would be this. If ever there were an example that casts into ugly relief their fucked up morality, their twisted values, their sanctimoniousness and their prudery, it is this.
binzinerator
@El Cid:
Win.
sparky
@timb: thanks–you put it much better than i did. next time i will try to remember to take off my legal edu-ma-kation goggles. do they make ever’ thing look funny or whut?
AnneLaurie
The true base of all “conservative” values, as they are understood in modern America: Big Daddy will do as he pleases, and the rest of you will do what Big Daddy tells you to do, with no backtalk. Forever and ever, AMEN.
May the Goddess of Consequences reward Scalia, Roberts, Alito, and Thomas as they deserve… possibly with small frontal-lobe strokes that will release from their pharisitical mouths the ugly words best suited to the ugly thoughts cloaked in their legalese.
Cris
Swine
Flu