International Law

The US Supreme Court is going to hear its irst major case on broadcast indecency in 30 years.  From Jan Crawford Greenburg's Legalities blog:

Holy @$#%! Here?s a surprise: The Supreme Court is going to hear some bad language. 

The justices announced today they?re going to take up the issue of profanity on network television?and whether it?s OK for President Bush to use the ?S-word? when he?s talking about Hezbollah, but not when Nicole Richie happens to blurt it out during some music award presentation.

I gotta tell you. I can?t wait for the arguments on this one.

This is the legal issue: Whether a single use of the ?F-word? or the ?S-word? on television violates FCC indecency rules. The FCC had long taken the position that it takes more than a so-called ?fleeting expletive? to violate those rules, but it started cracking down during the Bush Administration. It now says it can punish any network that broadcasts any vulgar word, no matter how unexpected.

So when Cher unexpectedly blurted out the ?F-word? and Richie said the ?S-word? during the Billboard Music Awards in 2002 and 2003, the FCC said Fox--which broadcast both shows--violated indecency rules.

All four networks sued over the tough new policy. The FCC lost in the U.S. Court of Appeals for the 2nd Circuit, thanks to some brilliant arguments by lawyers for NBC, led by Miguel Estrada at Gibson Dunn & Crutcher. Estrada cleverly pointed out that if President Bush and Vice President Cheney can say ?s***? and ?f***? in widely-reported exchanges, then the FCC can?t punish Fox when Nicole and Cher unexpectedly blurt out the same words.

Basically, NBC argued?and the 2nd Circuit agreed?that the FCC erred when it said that someone who utters certain words always is implying a sexual or excretory meaning.

Estrada?s brief in the 2nd Circuit is so terrific (and entertaining) that I?m just going to quote from it. Read and enjoy. But know that wherever you see asterisks, those are my own?since ABC policy prevents me from printing the brief in its full glory, even though that?s how the Washington Post and other publications wrote up the quotes at the time.

??the ?F-word? is often used to express intense (and clearly nonsexual) feelings?even by political leaders. For example, Vice President Cheney?s retort of ?F*** yourself? to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ?F-Word? in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.

In a display of bipartisan understanding that the ??F-Word?? has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking ?Did I expect George Bush to f*** it up as badly as he did? I don?t think anybody did.? Will Dana, John Kerry?s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, ?F___ Saddam. We?re taking him out.? (omission in original)).

These usages are not remotely ?sexual??and no viewer could reasonably view them to be. An administrative agency like the Commission cannot promulgate a legal standard that declares to the broadcast community that, ?[i]n making indecency determinations, context is key,? In re Infinity Broad. Corp., 17 FCC Rcd 9892, 9895 (2002) , but then adopt a one-size-fits-all, per se rule that expressly disavows any contextual analysis of the meaning of the ??F-Word.??

NBC then made the same argument for the ?S-word,? taking aim at the FCC order?s that any use of the word has an ?inherently excretory connotation.? Not so fast, said NBC.

While ?s***? can refer to excrement or excretory function, it also can refer, ?[i]n negative contexts,? to ?anything.? IV OXFORD ENGLISH DICTIONARY SUPP. 124 (1972). It denotes ?[r]ubbish, trash,? ?[m]isfortune, unpleasantness,? or an ?awkward predicament? (such as when ?the s*** . . . hits the fan?). Id. at 125. And bulls*** has no excretory implications; it means simply ?[r]ubbish, nonsense,? or ?to bluff one?s way through (something) by talking nonsense.? I OXFORD ENGLISH DICTIONARY 645 (2d ed. 1989).

The ??S-Word?? has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to ?get Syria to get Hezbollah to stop doing this s***.? Peter Baker, Bush?s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer?not even the Commissioners?could believe the President was making reference to Hezbollah?s ?excretory activities.?

The appeals court agreed.

Read more here.