Law Humor

Use by others, that is, although it may use a few of its own.

The Supreme Court granted certiorari today in the case of FCC v. Fox Television Stations, which presents the following question:

Is the Federal Communication Commission's determination that broadcast of vulgar expletives may violate federal restrictions on broadcasting "any obscene, indecent, or profane language" arbitrary in failing to provide a reasoned explanation for the agency's shift in policy on the use of isolated expletives?

The Court will thus be considering, in addition to questions involving torture, the separation of powers, and so on, whether fines can be imposed for dropping the F-bomb on a TV show.

This case arises from Bono's use of the word ("this is really f***ing brilliant") while accepting a Golden Globe in 2003.  According to a timeline put together by the First Amendment Center, the FCC received 234 complaints about Bono's F-bomb, but decided that "the utterance did not violate federal restriction . . . because the language in question did not describe or depict sexual or excretory activities or organs."  It was just the F-word in isolation.

Later, however, supposedly at the urging of FCC Chairman Michael Powell, the FCC reversed its position.  Apparently not wanting to establish a policy that isolated F-bombs (or the less-dreaded but still-indecent S-bombs) would be tolerated, the FCC stated that any use of even "fleeting expletives" would be considered "indecent" and subject to fines -- regardless of context, the number of bombs deployed, or the collateral damage inflicted, if any.

Though the FCC imposed no fines based on this policy for past incidents, it was sued by the four major TV networks in April 2006, who argued the policy was arbitrary and unconstitutional.  The 2d Circuit Court of Appeals ruled 2-1 last year that the FCC policy on "fleeting expletives" was arbitrary and capricious and was issued without a "reasoned analysis for departing from prior precedent."  The FCC appealed, and the highest court in the land will now take up the issue.

I very much look forward to the Supreme Court's reasoned analysis, and Bono's reaction to it.