F**k, S**t, C**t and the Supreme Court

BOULDER, Colorado -- On November 4, the United States Supreme Court heard oral arguments in a case brought by the Federal Communications Commission against Fox television stations across the country for their broadcast of "fleeting expletives." The case hinged on several on-air incidents in which the words "fuck" and "shit" were uttered on live television, and the FCC's new rules cracking down on any use of foul language, whether intentional or gratuitous or not.

Nobody was pleased that the Supreme Court decided to withhold recordings of these proceedings, since this was certainly the juiciest case to come before the court since it allowed audio recording devices. Unfortunately, according to media reports, neither the justices nor the lawyers said any of the offending words, choosing instead to use the euphemisms "f-word" and "s-word." I do not have an opinion on which way the court should rule in this case, but it does raise a number of interesting questions about free speech, the regulation of the public airwaves, and the uses of profanity on television.

If the FCC wins, and broadcasters are subjected to these rules, it is actually quite easy to fix without muzzling everyone on television. Tape delays are used widely already, and seven seconds is usually enough time for producers to catch the offending word and insert the necessary censor without losing the feeling of a live broadcast - that is, in seven seconds they cannot go back and re-shoot something if someone flubs their lines or goes all Howard Beale on the air.

The defendants in this case made the argument that the FCC's rule changes were abrupt, capricious, and arbitrary, and they held television broadcasters to an impossible standard that punished them disproportionately. Notice the lawsuit was against Fox television stations, not against the broadcast network, as the fine was levied against every single affiliate that aired the offending words, making it an astronomical sum. The defendants are probably right on this count, as the FCC tends to do too much moralizing and latches on to well-publicized incidents (like Super Bowl XXXVIII) while ignoring much, much more important issues, like the consolidation of ownership of media outlets. You could even argue that if the FCC has a right to regulate the morality of television programming, it should crack down on violence and sex, not Cher blurting out "fuck" at an awards show.

Interestingly, most of these rules apply only between 6 a.m. and 10 p.m., so even broadcast television stations can legally say and show whatever they would like at night, though they generally choose to apply the same decency standards around the clock (that is, Craig Ferguson does not rattle off "motherfucker," and they do not show hardcore pornography after 10). So, while they miss a bit of blue language here and there, they do a pretty good job of keeping the public trust by not turning the airwaves into dreck, or at least not fucking- and swearing-filled dreck.

Most basic cable stations still try to keep gratuitous swearing off the air, sort of. The bleeped-out f-word has become so ubiquitous on television that it is now a comedic device in itself. Some shows have been able to use this to great effect - Arrested Development turned censoring swear words into an art form, perfectly positioning actors and props to obscure the speaker's mouth just as they formed the offending word.

Other programs, like The Daily Show, make you wonder why the even bother bleeping it out. Cable is not subject to the same rules that govern the public airwaves, and they swear so frequently and with such vigor that they should probably just say "fuck" out loud, since functionally, the same thing is happening. There is no mystery, no innuendo, no guessing as to what was said. Even a child knows that Jon Stewart just said a dirty word. As much as I love The Daily Show, it often sounds like a bit of lazy, juvenile comedy that is made slightly less tedious by the bleep.

So, if the FCC really cares about protecting the ears of America's impressionable youth, they should set their sights on banning not just inadvertent swears, but the intentional use of bleeped-out swears as well. Or, just let the fuck, shit, cunt, piss, motherfucker fly.

Listen to a piece on NPR about the Supreme Court proceedings.