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The New York Times Fucks Up Again

By Jack M. Balkin

Today's lead editorial in the New York Times expressed perhaps justified concern about the Supreme Court's grant of cert. in a case involving the FCC's claimed power to apply sanctions with regard to what the Times calls "fleeting explitives." (Although I don't know why the Court is eager to review a case that the Second Circuit so clearly decided correctly, I'm not sure I can count to five with regard to votes favoring the FCC. Anthony Kennedy and Antonin Scalia have both been very good on some free speech issues, and I see no particular reason to assume that they are catspaws for a censurous FCC. So maybe they took the case to send an even stronger message to the FCC censors. We'll find out next year.)

The editorial notes that one of the key cases in this sequence involved "the 2003 Golden Globes Awards show, which included the singer Bono?s uttering a single expletive as he accepted an award. " The paper apparently believes that it is simply unacceptable to note that the expletive in quesion was "fucking." "The F.C.C.?s rationale for its fleeting expletives policy is indeed thin," writes the Times. The FCC "clamed it was only trying to reflect community standards. But there is scant evidence that the public is up in arms about an occasional coarse word. The words the commission finds so offensive, and so in need of punishment, are the sort commonly heard in PG-rated movies and walking down the street. " True enough, but the Times apparently believes that the use of the word(s) in its own newspaper would be so shocking (unlike the case with, say, the Economist, The New York Review of Books, Harper's,, The Atlantic, The Times Literary Supplement, and the New Yorker, for starters) that it must continue to use such euphemisms. If I were the FCC lawyer, I would use the Times' own primness as evidence for the proposition that it is indeed beyond the pale to use even "an occasional coarse word," even when readers might be justifiably and non-pruriently curious about what kind of language so bestirs the FCC's sensibilities.

In an earlier post quite a while ago, dealing with the Times's unilluminating coverage of the Second Circuit case that the Supreme Court will review, I made this same basic point. That is why the "again" is in the title. It's a fucking shame that the Times doesn't realize that its editorial timidity only reinforces the FCC censors (who could, of course, satisfy any "vagueness" concerns about the regulations simply by printing a latter-list of the "seven dirty words" that will earn a fine even if one of them is said by, say, a GI in Iraq after a buddy dies because of a terrorist attack).

Full post as published by Balkinization on March 23, 2008 (boomark / email).