The Supreme Court’s ruling in FCC v. Fox Television Stations, Inc. fizzled rather than sizzled, as far as First Amendment issues are concerned. In essence, the Court did not bother to assess the First Amendment constitutionality of the FCC’s latest iteration of its indecency rules because, having determined that the FCC failed to give fair notice to broadcasters of its new rule at the time of the allegedly “indecent” broadcasts, the constitutional flaw was one of Due Process (void for vagueness) grounds. Now that there is notice, the FCC can take another shot at a “fucking” utterance over the airwaves.
In addition to seven seconds of nude buttocks, the offending broadcasts included use of the words “fuck”, “shit”, and “fucking”. But don’t bother searching for the Opinion based on those words, because you won’t find them. Even though there is no radio or television broadcast of the Opinion itself, such that the Supreme Court’s Opinion would get no one in trouble for merely publishing the written Opinion, and even though the use of those words in the Opinion would have been fully protected by the First Amendment, the Supreme Court is happy to write about them, nut dares not say what “them” are.
The Opinion, authored by Justice Kennedy, instead uses harder-to-search references, such as “f***” to refer to “fuck”, “s***” to refer to “shit”, and “f***ing” to refer to “fucking” (as well as references to “the F-Word”). Thus, we all know what the Supreme Court was pretending not to say, but the Court made it more difficult for anyone to pinpoint the ruling by use of the very search terms most central to the case.
It is high time for courts to end the charade. It they are mature enough to make decisions of constitutional proportions and involving millions of dollars in fines on the basis of “fuck”, “shit” and “fucking”, then they should have the decency to say what it is they are passing judgment upon. Perhaps, if Justice Ginsburg’s desire for reconsideration of FCC v. Pacifica Foundation (involving George Carlin’s “Seven Dirty Words” monologue that anyone can easily find on YouTube) ever materializes, the Court will finally bring itself to saying rather than alluding to what its judgment is about. Seriously, how many words begin with “f”?
The precise words, in greater context and without the bewilderingly silly asterisks, were uttered by Cher (”I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So fuck ‘em.”); Nicole Richie (”Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”); and Bono (”This is really, really, fucking brilliant. Really, really great.”). Could Cher have passed muster with the censors by saying “So f-asterisk-asterisk-asterisk ‘em”? Certainly. And her comment would have come across as a an immature sophomoric exercise, just like Justice Kennedy’s Opinion. People don’t speak with asterisks, and neither should the Sup**** C***t.