When Does F*** Not Mean F***?: FCC v. Fox Television Stations and a Call for Protecting Emotive Speech
2011; Volume: 64; Issue: 1 Linguagem: Inglês
ISSN
2376-4457
Autores Tópico(s)Legal Issues in Education
ResumoI. INTRODUCTION II. FEDERAL COMMUNICATIONS COMMISSION V. FOX TELEVISION STATIONS, INC III. ANTECEDENTS TO FOX TELEVISION STATIONS A. Cohen and Emotive Speech B. Pacifica and Words You Never Say IV. CHAPLINSKY, COHEN AND BEYOND V. WHEN DOES F*** NOT MEAN F***? VI. THE F-WORD--THE NEXT ROUND VII. AN EMOTIVE SPEECH DOCTRINE? VIII. BROADCAST MEDIA AND THE FIRST AMENDMENT IX. CONCLUSION I. INTRODUCTION Almost since beginning or its First Amendment jurisprudence, Supreme Court of United States had love-hate relationship with words. Some words, Court said early in its free-speech history, are undeserving of First Amendment protection because, in balance, they harm society or do contribute to search for truth. (1) The very utterance of such words would inflict injury or tend to incite an immediate breach of peace. (2) Other words deserve extra protection because they are the essence of self-government. (3) These words constitute that matters. (4) For most part, Court been able to delineate structure to this hierarchy of First Amendment values, (5) but whether application of First Amendment to that structure been effective is another question. One critic noted, for example, that Court's use of theory that not all speech is of equal First Amendment importance (6) has been marked by vacillation and uncertainty. (7) Clearly, Court's dealings with nontraditional language and conduct can be so categorized. Whether issue is discussion of words that cannot be uttered over airwaves, (8) nude dancers in Pennsylvania, (9) or award-winning musicians uttering profanities on television, (10) Court seemingly become befuddled when confronted with expression that is indecent or out of ordinary. (11) The Court's confrontation with such slippery topics continued in 2008-2009 term with FCC v. Fox Television Stations, Inc., (12) case involving one of Court's biggest bugaboos--the use of so-called (13) The case did turn on use of offensive word, however, but on more mundane question of whether FCC met requirements of Administrative Procedure Act (APA) (14) when it changed its policies relating to broadcast of indecent language. While federal law prohibits use of obscene, profane, or indecent language over airwaves, (15) FCC, with blessings of Court, (16) established that fleeting expletives did meet definition of indecency, whereas repetitive use of such words did. (17) When, in 2004, FCC changed its policy and later took actions against broadcasters for on-air fleeting expletives, (18) it was required by APA to ensure that such changes and resulting rulemaking were arbitrary and capricious. (19) Whether FCC met that requirement was question in Fox Television Stations. It is clear, however, that language was undercurrent of opinion. Only Justices Clarence Thomas (20) and Stephen Breyer (21) did specifically address use of f-word. Each of other Justices at least confronted it, and use of word was key to majority opinion by Justice Antonin Scalia (22) and dissent of Justice John Paul Stevens. (23) Justices Scalia and Stevens were clearly at odds over both use and definitions of word, elements that might play significant role in constitutional questions that were avoided in Fox Television Stations (24) but are now at issue. (25) A panel of Second Circuit Court of Appeals held in July 2010 that FCC's indecency policy was unconstitutionally vague because it created a chilling effect that goes far beyond fleeting expletives at issue here. (26) In bruising attack on policy, Second Circuit reported that broadcasters simply want to know with some degree of certainty what policy is so that they can comply with it. …
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