Legalities
Life, Politics and the Law From ABC News Correspondent Jan Crawford Greenburg
Jan Crawford Greenburg is a correspondent for ABC News' bureau in Washington DC. She covers politics, the Supreme Court and provides legal analysis for ABC News. She is a graduate of the University of Chicago's law school and is a member of the New York bar.
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Dirty Words
March 17, 2008 1:51 PM
Holy @$#%! Here’s a surprise: The Supreme Court is going to hear some bad language.
The justices announced today they’re going to take up the issue of profanity on network television—and whether it’s OK for President Bush to use the “S-word” when he’s talking about Hezbollah, but not when Nicole Richie happens to blurt it out during some music award presentation.
I gotta tell you. I can’t wait for the arguments on this one.
This is the legal issue: Whether a single use of the “F-word” or the “S-word” on television violates FCC indecency rules. The FCC had long taken the position that it takes more than a so-called “fleeting expletive” to violate those rules, but it started cracking down during the Bush Administration. It now says it can punish any network that broadcasts any vulgar word, no matter how unexpected.
So when Cher unexpectedly blurted out the “F-word” and Richie said the “S-word” during the Billboard Music Awards in 2002 and 2003, the FCC said Fox--which broadcast both shows--violated indecency rules.
All four networks sued over the tough new policy. The FCC lost in the U.S. Court of Appeals for the 2nd Circuit, thanks to some brilliant arguments by lawyers for NBC, led by Miguel Estrada at Gibson Dunn & Crutcher. Estrada cleverly pointed out that if President Bush and Vice President Cheney can say “s***” and “f***” in widely-reported exchanges, then the FCC can’t punish Fox when Nicole and Cher unexpectedly blurt out the same words.
Basically, NBC argued—and the 2nd Circuit agreed—that the FCC erred when it said that someone who utters certain words always is implying a sexual or excretory meaning.
Estrada’s brief in the 2nd Circuit is so terrific (and entertaining) that I’m just going to quote from it. Read and enjoy. But know that wherever you see asterisks, those are my own—since ABC policy prevents me from printing the brief in its full glory, even though that’s how the Washington Post and other publications wrote up the quotes at the time.
“…the “F-word” is often used to express intense (and clearly nonsexual) feelings—even by political leaders. For example, Vice President Cheney’s retort of “F*** yourself” to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ‘F-Word’ in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.
In a display of bipartisan understanding that the “‘F-Word’” has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking “Did I expect George Bush to f*** it up as badly as he did? I don’t think anybody did.” Will Dana, John Kerry’s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, “F___ Saddam. We’re taking him out.” (omission in original)).
These usages are not remotely “sexual”—and no viewer could reasonably view them to be. An administrative agency like the Commission cannot promulgate a legal standard that declares to the broadcast community that, “[i]n making indecency determinations, context is key,” In re Infinity Broad. Corp., 17 FCC Rcd 9892, 9895 (2002) , but then adopt a one-size-fits-all, per se rule that expressly disavows any contextual analysis of the meaning of the “‘F-Word.’”
NBC then made the same argument for the “S-word,” taking aim at the FCC order’s that any use of the word has an “inherently excretory connotation.” Not so fast, said NBC.
While “s***” can refer to excrement or excretory function, it also can refer, “[i]n negative contexts,” to “anything.” IV OXFORD ENGLISH DICTIONARY SUPP. 124 (1972). It denotes “[r]ubbish, trash,” “[m]isfortune, unpleasantness,” or an “awkward predicament” (such as when “the s*** . . . hits the fan”). Id. at 125. And bulls*** has no excretory implications; it means simply “[r]ubbish, nonsense,” or “to bluff one’s way through (something) by talking nonsense.” I OXFORD ENGLISH DICTIONARY 645 (2d ed. 1989).
The “‘S-Word’” has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this s***.” Peter Baker, Bush’s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer—not even the Commissioners—could believe the President was making reference to Hezbollah’s “excretory activities.”
The appeals court agreed.
“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 ruled.
It added that the FCC’s new policy failed “to provide a reasoned analysis justifying its departure from the agency’s established practice.”
FCC Chairman Kevin Martin was irate. If he had spoken his mind rather than issued a written statement, well you be the judge of whether he violated indecency rules. (And remember I actually can’t print the statement verbatim, because ABC policy prevents me from writing out s*** and f***. You can use your imagination.)
“Today, the Second Circuit Court of Appeals in New York said the use of the words ‘f***’ and ‘s***’ by Cher and Nicole Richie was not indecent,” Martin said in a statement (the asterisks are mine). “I find it hard to believe that the New York court would tell American families that ‘s***’ and ‘f***’ are fine to say on broadcast television during the hours when children are most likely to be in the audience.”
Holy @$#%, Mr. Chairman!
March 17, 2008 | Permalink | User Comments (41)
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First they take our guns, then they bar cussing, and they call us "homegrown terrorists" if we protest against them... well so much for expressing dissent in America. Get ready to be pepper sprayed and tased if you disagree with Bush or Hilliary in perpetuity, if your lucky.
Posted by: cba | Mar 17, 2008 2:19:30 PM
I don't give a flyin' fricaseed flippin' danged cussin' nickel about the Supreme Court's review of the first amendment. Nasty speech is protected and hate speech is protected in our nation. For example, Reverend Wright and Rush Limbaugh are free to spew as much hatred as they like. However, the first amendment does not free leadership from having to confront these types of abcesses. Get it out of the courts and into the hands of the voters. Vote for your leaders or shut the h' up.
Posted by: WestCoastMessenger | Mar 17, 2008 2:31:45 PM
This is the legal issue: Whether a single use of the “F-word” or the “S-word” on television violates FCC indecency rules. The FCC had long taken the position that it takes more than a so-called “fleeting expletive” to violate those rules, but it started cracking down during the Bush Administration. It now says it can punish any network that broadcasts any vulgar word, no matter how unexpected.
"F-word" THE B*SH *DM*N*STR*T**N. GEORGE HAS RIDDEN THIS COUNTRY INTO THE GROUND ON A SHALLOW INTELLECT AND HIS GUT FEELING. RIGHTEOUS? NO! INCOMPETENT.
Posted by: Neil | Mar 17, 2008 2:54:57 PM
The day I have to start listening to the F or Sh word on TV is the day I stop watching TV. I already have to hear words I never thought I would while I was growing up. We used to be a society of politeness, propriety, class, and morality. Now because so many people don't possess any of those things, the rest of us have to be subjected to nasty obscene and offensive language. Isn't it bad enough that sex is discussed everywhere you hear, look, listen? But the acceptance of it is so ridiculous that no one under the age of 40 seems to remember a day when you couldn't even say the word "pregnant" on national TV. Now we have to hear the F word? If the Supreme Court is the smart bunch of folks they're supposed to be, they'll realize that people over the age of 45 are the majority in this country, and very few of us want to hear that type of language on TV all the time. We're sick to death of it.
Posted by: Kelly | Mar 17, 2008 3:08:17 PM
While I don't agree w/ the use of those words, I also don't believe that any American should be muzzled and told what is and is not acceptable to say or hear. If you don't like what you hear, there's always the option of turning off the tube! Go fishing...they don't cuss at you even when you hook them!
Posted by: Dave | Mar 17, 2008 4:27:02 PM
I live in Canada now, where censorship laws are (thankfully!) much more lax. You hear those words on tv every day, on normal basic cable, after a certain time. I believe it's 10:00pm, depending on where you live. You have the option of watching Canadian stations, or flipping over to, say, TBS if you want the super-mega-condensed version of any movie if you can't handle a bit of colorful language.
Having expletives on television hasn't eroded Canadians' sense of morality whatsoever. Mostly it's viewed in a comical light. To imply the entire country is impolite and without class because this is allowed is rather narrow-minded. If you don't want to listen to the s-word, for example, you might not want to watch South Park.
If you're watching General Hospital, I highly doubt that they're going to start dropping F-bombs any time soon. For those in fear, and to the morality police: Lighten up. The shows you watch probably aren't going to change.
Side note: Remember the famous Superbowl "wardrobe malfuction"? A Canadian news station was commenting, and the anchor said something like "I can't believe America is so offended by that. If you're offended by two seconds of breast, please avert your eyes from the screen for the next thirty seconds" And they proceeded to show random shots of bare breasts for thirty seconds, it was hilarious! Seriously... lighten up! ;)
Posted by: Mikaedith | Mar 17, 2008 4:30:31 PM
Amazing that the FCC is so worried about the S-word and the F-word, but allow "ED" and "personal lubricant" commercials to run on TV every 5 minutes so that nobody with children can even turn the stupid thing on anymore! The FCC's so called morality is reserved only for when MONEY IS NOT INVOLVED! What a crock!
Posted by: AC | Mar 17, 2008 4:46:08 PM
The NBC attorney has it right! And, seriously, who hasn't used those words? Just because they're on TV, doesn't mean we have to use them. Just as violence is prevalent on television coupled with racy love scenes, drug and alcohol use and much more, you don't see people running out (most of the time) to follow suit. Freedom of speech should encompass much of this. It seems crazy to me that certain words cannot be aired when their context is perfectly okay. Also, different parts of the country see this issue differently. In the north, it's hard to not walk a block without hearing a four letter word. In the south, you're shunned. If you don't want to watch a program because they throw in the S-word or the F-word, don't watch it. For kids, they have Nick Jr., Disney, PBS and more. Parents should be watching and making sure that they're kids aren't watching this stuff. That's why they make parental controls for the television and computer. Sure, lots of people don't want to hear it, but I say, why not give networks the right to air it, especially if it is after 8 p.m. at night. Just my thoughts.
Posted by: Louise | Mar 17, 2008 5:02:08 PM
I don't like this kind of language and so I don't use it. I also don't have cable or satellite TV for the same reason. If we want to watch some TV, we watch one of our dvd's or videos, most of which are PG or better. Though I wish people in general had more class and didn't use profanity or vulgarity, I recognize their right to use it - and hope they recognize my right to dislike it.
Posted by: genlin | Mar 17, 2008 5:09:22 PM
How come everytime I hear that the Bush administration wants to protect me from something I feel like saying the F-word or the S-word. Also, if people NEVER say the F-Word or the S-word, how will anybody know what the F-word or the S-words are? And if they already know, then its too late anyway. Folks, they're only WORDS.
Posted by: KerrAvon | Mar 17, 2008 5:09:49 PM
The REAL obsenity in this country is this stupid needless war that Bush won't end. As W.C.Fields once said : Godfrey Daniels.
Posted by: KerrAvon | Mar 17, 2008 5:13:09 PM
This would be funny if it wasn't so ridiculous. When did the FCC decide it is the moral compass for us all? These are some dangerous precedents being set. Think of the movie Demolition Man... where you got fined for swearing... fined for eating fatty food... Good bye freedom, better think pleasent thoughts!
Posted by: Troy Street | Mar 17, 2008 5:15:37 PM
I find it totally ridiculous that we edit words AT ALL. I really don't care if my little one curses... AT ALL... just as long as he does it with style. When I go abroad and see TRUE FREEDOM OF EXPRESSION on television, it is all I can do to watch US tele. Why can't we all just get past this superficial nonsense without BLEEPING every other word uttered just because some old codger finds it offensive?!
Posted by: RW | Mar 17, 2008 5:18:55 PM
The people that curse the most are the religious right, Mormons, and school teachers, particularly English teachers. Do as I say, not as I do!
Posted by: Vic Ferrari | Mar 17, 2008 5:23:10 PM
The footman may swear; but he cannot swear like a lord. He can swear as often: but can he swear with equal delicacy, propriety, and judgment?
Jonathan Swift
Posted by: Wally | Mar 17, 2008 5:42:16 PM
The f word is also known as universal adjective because one can use it to describe most anything or any feelings.
Posted by: jeep caillouet | Mar 17, 2008 6:33:27 PM
We just need to have tape delay for any shows during primetime. It won't hurt us to wait 7 seconds and will protect our kids.
Having said that, no TV network should be fined because an independent person utters an unexpected profanity. If anyone should be fined, it is the person who utters it if they can be shown to be aware they are being broadcast live.
Posted by: Doc Savage | Mar 17, 2008 7:00:39 PM
I find it amazing that this government is still functioning. Should this really be in court? This is ALMOST as bad as when those ignorant fat people sued McyD's because they ate McyD's all the time and became fat.
Plus, I would also like to note that the one comment made by a Canadian was the best written and her point the best. If you have a problem with whats on tv... DON'T watch it. Grow up American.
Posted by: nathan | Mar 17, 2008 7:38:51 PM
Great, now I have to watch for foul language before my child can watch TV. I am all for first amendment rights. I studied Poli Sci in college. However, at level has our society evolved to when we need to use foul language on TV? What does that say for our nation and intellect. My mother is an english teacher and she always says "if you have to swear it just demonstrates your intellectual level!" What is the need to use this language at all, let alone on TV when young impressionable minds are watching. Is nothing sacred anymore?
Posted by: KRG | Mar 17, 2008 7:42:03 PM
I have never seen so much foul language on a site. I guess I am sheltered. Why do we need this language on TV? I rented a movie that won several oscars with Leonardo Caprio and Matt Damon, Jack Nicholson. I think it was called the Departed.It had the foulest language from the beginining. I should have realized it since it was rated R, but I did not see the need for the F word every 2 seconds. Can anyone explain the point of that. Is that we have evolved too?????
Posted by: borninkl | Mar 17, 2008 7:47:18 PM
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