Error: Unable to create directory /home/demockra/public_html/wp-content/uploads/2010/09. Is its parent directory writable by the server? The FCC Won’t Let Me Be, or Let Me Be Me

Hey, look! It’s my new column! The title of this column, “Lawful Dissent,” was suggested by Brad, and I think it’s very appropriate. A little history: since I took a communications class at Miami University in 2003-04 dealing with First Amendment law, my hunger for the law has been ravenous. I’ve taken up armchair legal reading as a hobby (hey, some people play with toy airplanes), and while I feel like I bring some degree of depth and understanding to the law, I am by no means a lawyer. I have come upon my knowledge through inquiry, not official study, in much the same way that NPR’s Adam Davidson knows economics or Chris Mooney knows science — it’s the topic of their journalism. So, too, is the law the subject of my journalism, and I hope to impart to you, the reader, some knowledge about how law works, and especially how the U.S. Supreme Court works.

Now that that is out of the way, on with the show! And what a show it is. We may end up seeing “the F-word” and “the S-word” used in open court as The Supremes prepare to restore (or not) the FCC’s power to punish fleeting uses of the above words on broadcast television. The FCC’s power to regulate obscene or indecent content on broadcast television is granted to it by Congress, under the theory that (1) Congress, via the FCC, is the custodian of the people’s electromagnetic waves. The FCC was established in order to regulate the operation of what was then a limited number of frequencies that could be used (although, with modern technology, the fear that stations will bleed into one another is becoming increasingly anachronistic and there are some people out there who feel that the FCC’s role as traffic police of the electromagnetic spectrum is no longer necessary). The FCC does not, despite what urban legend-type emails may say, have the authority to regulate the content of cable television or the Internet (although it may enforce antitrust regulations on the business practices of companies who do business in either sphere).

The history of “obscenity” is interesting. Current case law regarding obscenity comes to us from Cohen v. California (1971), in which plaintiff Cohen was arrested for wearing a jacket upon the back of which was written “F— THE DRAFT” (of course, on the original jacket, there were no letters blanked out). The case made it to the Supreme Court, which ruled in Cohen’s favor. In doing so, it established a multi-prong test for “obscenity”:

1. The content in question must be patently offensive (meaning, no insinuations or double entendres; it’s got to be flagrant) to a reasonable adult applying contemporary community standards (the community could be as small as a town or as big as the country; the Court rightly understood that different communities tolerate different levels of obscenity and chose not to impose a unilateral standard on the entire country).
2. The content must lack significant literary, artistic, political, or scientific value. This is often called the SLAPS test.
3. The content must appeal to the prurient interests. This means sex. Built into the definition of “obscene” is that it must have to do with sex.

If some content passes all three tests, then it is judged “obscene” and not constitutionally protected. In Cohen’s case, prong 1 is true: the jacket is patently offensive. Prong 2 was false: the jacket did have political value, as it was a political statement. Prong 3 was false: the word was being used in the expletive sense, not the sexual sense. And thus, Cohen’s jacket was found to be constitutionally protected.

To return to the present day, FCC v. Fox Television Stations — the case in which Chief Justice John Roberts will decide whether or not attorneys may drop the F-bomb in court — deals with whether or not the FCC was “arbitrary and capricious” in changing its policy to prohibit incidental uses of certain expletives on broadcast television. The Second Circuit Court of Appeals ruled against the FCC, calling its policy change “arbitrary and capricious” (legal speak for “you can’t just change your mind all of a sudden”).

The controversy stems partly from Bono’s 2005 appearance at the Golden Globes in which he said his award was “really, really f—ing brilliant.” At the time, the FCC refused to call Bono’s language “obscene,” given that his use of the F-word was as an expletive, not in the sexual sense. A Christian organization, Parents Television Council, put pressure on the FCC to punish CBS, and the FCC later reversed itself, called Bono’s language “indecent,” and fined CBS. The FCC took the opinion earlier this year that “even non-literal uses of expletives fall within its indecency definition because it is ‘difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.’” The Second Circuit, though, didn’t buy that argument, noting that, yes, it is definitely possible to separate metaphorical uses of words from their “literal description of sexual or excretory functions,” and in fact, Americans do so every day!

The FCC’s crusade against obscenity in the last four years has been wholly driven by Parents Television Council, which created an email form on its website that allows people to complain directly to the FCC. 99% of the complaints the FCC receives come from Parents Television Council. I can only hope that Chief Justice Roberts will actually use the words in court, as tiptoeing around them only increases their mystical quality and reinforces the notion that such words can only be used in their literal meanings.