Anyone who has ever dealt with attorneys has come to the realization that the law does not always make perfect sense. Even so, it comes as at least a mild surprise to find the Supreme Court cheerfully authorizing the government to engage in censorship, as it did this week.
The First Amendment is admirably blunt in saying, "Congress shall make no law … abridging the freedom of speech." But never doubt the ability of a lawyer to turn clarity into mud. Recalling a case involving a raunchy routine by comedian George Carlin, Justice Antonin Scalia said, with evident approval, "that the First Amendment allowed Carlin's monologue to be banned."
Say what? As a matter of logic, that's like saying the 10th Commandment requires you to covet your neighbor's wife and ox. The Constitution was actually designed to prevent the government from telling people what they cannot say.
But the Supreme Court has a way of ignoring the obvious anytime there is a convergence of two things: broadcasting and bad words. So Tuesday, it ruled that the Federal Communications Commission was within its powers to punish TV networks for airing even a single F-word or S-word.
That was a departure from past policy, which made allowances for the unpredictability of live coverage. The FCC once disregarded expletives unless they were used repeatedly. But in 2004, it decided the youth of America could not withstand a single fleeting vulgarity. So it found Fox Television Stations guilty for airing profane outbursts by Cher and Nicole Richie.
What the court did not resolve is the question of how on earth the FCC can punish people for utterances of which it disapproves. The federal government, after all, may not outlaw all use of the F-word. It may not forbid you from saying it in your home, car, workplace, neighborhood diner or tavern, gym, local park, or place of worship.
It also may not outlaw foul language in movies, plays, concerts, musical recordings, websites, satellite radio programs or even cable TV shows. Any such prohibition, you see, would violate your freedom of speech.
So where does the government get the power to punish someone for saying that word on Fox's telecast of the Billboard Music Awards? From Supreme Court justices who, decades ago, carved out a large loophole in the First Amendment rather than let free speech run amok on TV and radio. It said the FCC could impose rules that would never pass muster in any other medium, on the dubious theory that the airwaves were a scarce commodity requiring government rules on content.