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Federal Judiciary

: Supreme Dicta

Justice Stevens Proposes the Rule of Hilarity

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For those of you swept up in election fever this week (including me), the rest of the country was still operating as usual, including an important oral argument at the Supreme Court in the case Fcc v. Fox Television Stations.

Here is the background on the case from Oyez:

During the [2002 and 2003 Billboard Music Awards aired on Fox], one musician used an explicative in his acceptance speech, and a presenter used two expletives. The FCC, although it had previously taken the position that such fleeting and isolated expletives did not violate its indecency regime, issued notices of liability to Fox for broadcasting the profane language.

Thus the question for the Court to decide is:

Is the FCC's order imposing liability on Fox Television Stations for fleeting expletives spoken during two nationally broadcast awards ceremonies is "arbitrary and capricious" under the Administrative Procedure Act, based on the FCC's previous acceptance of similar expletives?

Ok, now for the funny stuff. During oral argument, Justice Stevens asked the following question:

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?

To which Ann Althouse replies: "Imagine the law turning on whether a joke is funny! I know it when I hear it." BAH-ZING!! (N.B. I kind of feel sorry for Justice Stewart being pilloried for his infamous "I know it when I see it" approach to indencency, but not all that sorry).

Let's pause and think about how the rule of hilarity would be adjudicated:

Defendant	Offending passage	Ruling
Chris Rock	Doctors don't cure s$%^! The last disease doctors cured was polio, when's the last time you met someone with polio?	Passes constitutional muster
Mitch Hedberg	My belt holds up my pants and my pants have belt loops that hold up the belt. What the f#&@?s really goin on down there? Who is the real hero?	Depends on whether Justice Kennedy has the munchies
Pauly Shore	F#&^ you, Sandler!	Definitely indecent

BTW, the solicitor general's answer to Justice Stevens' question:

When "celebrities use particularly graphic, vulgar, explicit, indecent language as part of the comedic routine," he said, there is "potentially greater harmful impact on children."

Apparently the government has perfected a time machine because the solicitor general appears to be from the year 1957. Get a sense of humor, for f*#&'s sake! And the FCC needs to grow a pair! They shouldn't take their marching orders from the Religious Right.

Full post as published by Supreme Dicta on November 06, 2008 (boomark / email).