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.
Nowadays, broadcast outlets are only one of many ways that people find news and entertainment. Most people get their over-the-air TV channels not over the air, but via cable or satellite transmissions. But because the FCC insists on clinging to its antiquated regulatory authority, words that may be used on Channel 31 are illegal on Channel 32.
The excuse is protecting impressionable youngsters from irreversible coarsening. Scalia and his colleagues rationalized the FCC action by saying that "it suffices to know that children mimic the behavior they observe -- or at least the behavior that is presented to them as normal and appropriate."
But in much of the world that modern children inhabit, that behavior is already regarded as normal and appropriate. Most grade-schoolers didn't learn the bad words they know from Cher. They learned them from peers, just as their parents and grandparents did. In most homes, they know better than to mimic that behavior within earshot of their parents, regardless of whether they see it on TV.
Without the FCC's vigilance, parents who want to shield their offspring from random F-bombs would have to monitor their TV viewing. But if they have cable or satellite service, they already have to do that. And their bigger challenge is supervising Junior and Sissy when they surf the Internet, which most families welcome into their homes even though its content is unregulated.
That's right. Amazing though it may sound, the World Wide Web is a means of mass communication that operates without federal censorship, relying on users to depend on their own judgment, deploy their own filters or simply take their chances. If that approach works for a new medium, maybe someday we could try it on an old one.