The nation's leading champions of televised profanities celebrated a victory for the "First Amendment" when the Manhattan-based Second Circuit Court of Appeals rebuffed the FCC's attempt to fine Fox Entertainment for dropping F- and S-bombs on prime-time television by Cher and Paris Hilton's pal Nicole Richie, in front of millions of young children.
Both times the cussing came during live awards programs, neither of which contained even a five-second delay. Fox never felt obligated to do anything but offer insincere apologies for what it aired and still continues to refuse to enact a time delay to prevent this from happening in the future.
The federal judges who ruled against the FCC suggested the agency's rulings were "arbitrary and capricious." But is there anything more arbitrary and capricious than an egotistical celebrity dropping the F-bomb on national TV? Or the network refusing to administer a tiny delay?
Pardon me if I can't imagine Thomas Jefferson and Co. pledging their lives, their fortunes and their sacred honor for the valiant cause of transmitting the potty mouths of washed-up pop singers and spoiled-rotten mall princesses into millions of American households. Why the hurrahs? It's a bit like cheering dog owners who never clean up their pet's droppings on other people's lawns. Maybe now that Paris is out of prison, she'll have learned new words she can teach little children.
In the two-to-one ruling, dissenting Judge Pierre Leval, a Clinton appointee, found that the majority failed to consider that the FCC made every effort not to be "arbitrary and capricious." It openly admitted a change in policy -- that a single use of the F-word can itself be an indecency violation, because the word always carries an offensive sexual connotation. It laid out its rationale in detail. It explained how there would be exceptions granted by the context of the speech -- such as in news broadcasts. Courts are not supposed to overrule agencies just because it would make a different ideological decision.
But the judges in the majority delighted The New York Times by going political, referring favorably to NBC's legal argument that the F-bomb does not normally have a sexual meaning, and the S-bomb doesn't have an excretory meaning, since President Bush and Vice President Cheney have "used variants of these expletives" in public. "If Bush Can Blurt Curse, So Can Network TV," the Times wrote in its Page One headline. (That presidential attack line is mildly surprising since one of the pro-cursing judges, Peter W. Hall, is an appointee of one George W. Bush.)