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Is it ever appropriate for the government to take into account that a "particular remark was really hilarious, very, very funny?"

Justice Stevens asked yesterday in the argument about whether the FCC could fine a broadcaster for allowing a "fleeting expletive" to go out over the airwaves. Here's the NYT account of the argument, with the usual details about the issues in the case, if you need to get up to speed. I'm reading the transcript. (PDF.) And, no, nobody said "fuck" in the elite courtroom yesterday. They did say "F-word" many, many times. And they talked about Paris Hilton. Scalia is onto her bullshit:

JUSTICE SCALIA: This Paris Hilton incident was scripted. The use of the indecent word was almost invited, wasn't it?

GENERAL GARRE: Certainly our view is that it was pandering and invited. It could have been expected.

JUSTICE GINSBURG: Wasn't there a different word? Wasn't there a euphemism in the script? I thought there was a euphemism in the script.

GENERAL GARRE: The euphemism in the script I think was "freaking", and another euphemism for the S-Word, but they obviously departed from that. And I think the commission --

JUSTICE SCALIA: But it was sort of an invitation. I mean, before she was ntroduced, said, "Now we're on live television, you have to watch your mouth," or something like that.

GENERAL GARRE: That's what Paris Hilton said. I mean, I think the whole thing was set up to be pandering --

JUSTICE SCALIA: It was a setup.

So did these words just slip out or not? Nino knows what you're up to.

Meanwhile, the elderly Justice Stevens wants you to know that he thinks some of these dirty jokes are freaking hilarious:

JUSTICE STEVENS: Maybe I shouldn't ask this, but is there ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny? Some of these things you can't help but laugh at. Is that -- is that a proper consideration, do you think?

Imagine the law turning on whether a joke is funny! I know it when I hear it.

JUSTICE SCALIA: Oh, it's funny. I mean, bawdy jokes are okay if they are really good.

Justice Scalia would like you to know that he's no prude. That's not the issue. The question is whether the FCC can regulate, not whether dirty jokes make old judges laugh.

Full post as published by Althouse on November 05, 2008 (boomark / email).