The Supreme Court of the United States is a redoubt of decorum in a casual Friday world. The justices still wear robes. The assembled attorneys, journalists, and interested observers still rise when the robed ones enter the chamber. Lawyers still begin their oral argument presentations by intoning the words "May it please the court."
But when the justices convened last Nov. 4, they were hearing arguments about whether the "s- word" and the "f- word" can be legitimately regulated by the Federal Communications Commission. In a decision handed down last week, the Court ruled 5-4 on behalf of the FCC. But the fact that this sort of thing had to be decided by the Supreme Court reminded me of what a wise man once said, "It's difficult to be too much better than the age in which you live."
At issue was the Federal Communications Commission's decision to levy fines on Fox Television after Cher and Nicole Ritchie used those offending words during a televised awards ceremony. The justices got into a major tussle over administrative law, and specifically over the question: Do the words in question have to be referring to "excretory" or "sexual" meanings in order to be forbidden on national television? The FCC had explained that "any strict dichotomy between expletives and descriptions … of sexual or excretory functions is artificial" because "an expletive's power to offend derives from its sexual or excretory meaning." Justice John Paul Stevens denied that and presented his own anodyne interpretation. "The customs of speech refute this claim:
There is a critical distinction between the use of an expletive to describe a sexual or excretory function and the use of such a word for an entirely different purpose, such as to express an emotion. One rests at the core of indecency; the other stands miles apart. As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent. But that is the absurdity the FCC has embraced in its new approach to indecency. Even if the words that concern the Court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin. These words may not be polite, but that does not mean they are necessarily 'indecent' under (U.S. Code) 1464."
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