What’s not to love about the decision of the Court of Appeals (Second Circuit) slapping down the FCC for its obsessive — and often silly — jihad to rid television and radio broadcasts of even the tiniest sprinkling of “fleeting expletives?” Actually, there is one thing — the fact the decision wasn’t unanimous. I mention this because, sadly, my guess is that it will ultimately be overruled, either by the full Second Circuit on rehearing or by the United States Supreme Court.
And doesn’t it give you a warm and fuzzy feeling all over knowing that a certain Justice Alito is now on the Supreme Court — you know, to help make certain that the right — and I mean right in every sense of the word — thing is done?
As Washington’s favorite current cliché goes: “Elections have consequences.” And so, by the way, do the actions of Senate Democrats in rolling over for the confirmation of extremist judges (thanks again, Gang of 14).
Still, for the moment let’s just sit back and enjoy the majesty of the law when it’s practiced — or more particularly adjudicated — well. Here, as you’ve probably already read elsewhere, is the New York Times report summing up the Court’s stinging rebuke:
WASHINGTON, June 4 — If President Bush and Vice President Cheney can blurt out vulgar language, then the government cannot punish broadcast television stations for broadcasting the same words in similarly fleeting contexts.
That, in essence, was the decision on Monday, when a federal appeals panel struck down the government policy that allows stations and networks to be fined if they broadcast shows containing obscene language.
(Paragraphs containing FCC whining omitted)
The decision, by a divided panel of the United States Court of Appeals for the Second Circuit in New York, was a sharp rebuke for the F.C.C. and for the Bush administration. For the four television networks that filed the lawsuit — Fox, CBS, NBC and ABC — it was a major victory in a legal and cultural battle that they are waging with the commission and its supporters.
Under President Bush, the F.C.C. has expanded its indecency rules, taking a much harder line on obscenities uttered on broadcast television and radio. While the judges sent the case back to the commission to rewrite its indecency policy, it said that it was “doubtful” that the agency would be able to “adequately respond to the constitutional and statutory challenges raised by the networks.”
Okay, so there’s a second thing not to love about the decision — Fox likes it. All flippancy aside, however (well, I’ll try anyway), this case presents an extremely important First Amendment issue. And the key point isn’t the God given right to swear like a sailor in public: no, the critical issue is the potential for selective enforcement.
The FCC, for example, was willing to give Saving Private Ryan a pass because, as The Times reports, “deleting the expletives ‘would have altered the nature of the artistic work and diminished the power, realism and immediacy of the film experience for viewers.’” Do you think the same result would have been reached if, for instance, the film in question had been more overtly antiwar, especially, let’s say, a movie that attacked The Worst President in American History for starting a certain unnecessary war currently bleeding this nation dry?
Yeah, I don’t have a lot of doubt about the answer either.