Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Talk dirty to me

A couple weeks back, Dick Feagler, the Cleveland Plain Dealer's resident scold, penned his latest installment on why America is going to hell in a handbasket.  For those unfamiliar with his ouevre, Feagler's columns typically cast a covetous eye back to those days of yore when men were men and women weren't, and then focus despairingly on what he perceives to be the latest data point on our glide path to total decadence.  On this occasion, according to the headline, it was that "nothing is sacred -- or taboo -- on TV."  That's as far as I got, or needed to.  I doubt if I could make it through an entire Feagler piece at gunpoint any more.  Besides, if you're into that sort of thing, there are people who do it better, like Andy Rooney, although at this point even he can barely open his mouth without lapsing into self-parody.  I guess nostalgia isn't what it used to be.

At any rate, if Feagler believes things are bad now, he probably doesn't even want to think about what might happen on Friday, when the US Supreme Court is due to consider whether to accept review of the 2nd Circuit's decision in FCC v. Fox Television, which struck down the FCC's "fleeting expletives" policy.

For us boomers, one of the seminal cultural events of our time was George Carlin's 12-minute monologue on the seven dirty words you can't say on TV.  His recording of that piece was played on a radio station in 1975, and the FCC fined the station.  This is where things get funky.  Although the FCC is prohibited by statute from engaging in censorship, another statute prohibits "obscene, indecent, or profane language" on the airwaves, and that served as the basis for the FCC's action.  The case made its way to the Supreme Court, which upheld the fine in FCC v. Pacifica FoundationThe opinion was a plurality 5-4 decision, in which the majority agreed that because of the "unique nature" of broadcasting, limited First Amendment protection was justified, and that under the narrow facts of this case, Carlin's "verbal shock treatment" could be penalized.  Two members of that plurality specifically cautioned against sanctioning the "isolated use of potentially offensive words."

For the next quarter century, the FCC acted within that narrow interpretation.  In 1983, it even refused to sanction a broadcaster who'd run an early-morning program in which the words "motherfucker," "fuck," and "shit" were used, on the grounds that there was no evidence this was more than an isolated use.  That policy was formalized in 2001, when the FCC issued guidelines to broadcasters as to what was impermissible; one of the requirements for sanctions was a showing that the material "dwells on or repeats at length descriptions of sexual or excretory organs or activities." 

So nobody gave it much thought when U2's Bono accepted his award at the 2003 Golden Globes by announcing, "This is fucking brilliant!"  There was a challenge, but the FCC's Enforcement Bureau rejected it, finding that there was nothing in the FCC's policy which would make Bono's statement a violation.  At which point, to everyone's surprise, the full Commission changed its policy, announcing that "the ‘F-Word’ is one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language," and that henceforth any use of the term, however isolated, would be penalized.  It later extended this ruling to the various permutations of "shit."

All this was appealed to the 2nd Circuit, which reversed the FCC.  (You can find the opinion here.)  The court's primary basis was the Administrative Procedure Act; the short version is that the FCC's decision was too arbitrary and lacking in any rational jusification to withstand scrutiny.  Oddly enough, the court didn't stop there, but also held that the FCC's decision raised serious constitutional issues, particularly with regard to vagueness.

If all this lands in the Supreme Court's lap, things could get interesting.  The broadcast landscape has changed significantly since FCC v. Pacifica Foundation, and the Court's decisions since then, striking down restrictions on cable broadcasting and the Internet, don't give a lot of solace to those who hope that we'll be returned to days of yore, when, as in the Dick Van Dyke Show, a young married couple could conceive a child (off-camera, of course) while sleeping in separate beds.

That's not to suggest that an "anything goes" policy has much to recommend it.  The argument that our culture has coarsened over the past several decades is not one made solely by prudes, by any stretch.  Indeed, to a certain extent, the current debate is altered by the race to the bottom that's been going on over that time:  Bono's exclamation would have been shocking fifty years ago and surprising twenty-five years ago, but is essentially unremarkable now, when one can turn on a radio station and be bombarded with songs about "ho's" and "bitches," or be informed that the Vice-President of the United States has told the Senate Judiciary Committee Chairman to "go fuck yourself." 

Still, the Supreme Court's observation in its decision rejecting restrictions on cable broadcasting is relevant in this context:

The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.

Many of the same people objecting to the crudity of TV fare are quite willing to allow the free market to take care of health care, environmental issues, and other areas normally subject to government regulation.  Maybe this is another area where the free market should be left to do its magic.


Recent Entries

  • February 20, 2018
    What's Up in the 8th
    A search decision, more "policies," and why a seminar for muni court judges on taking pleas might be a good idea
  • February 14, 2018
    Two more to death row
    A couple of death penalty decisions from the Ohio Supreme Court
  • February 12, 2018
    En banc on sentencing
    The 8th looks at the appellate court's role in reviewing sentences
  • February 8, 2018
    SCOTUS and the Fourth
    A couple of upcoming Supreme Court decisions on search and seizure
  • February 5, 2018
    What's Up in the 8th
    The benefits of appealing muni court cases, lecture time, and when you absolutely, positively, cannot raise arguments about manifest weight and sufficiency
  • February 2, 2018
    Friday Roundup
    School specs and sovereign citizens
  • January 31, 2018
    A tale of three cases
    The Ohio Supreme Court decides one case, and decides not to decide two others
  • January 29, 2018
    What's Up in the 8th
    Getting rid of an attorney, no contest pleas, and probation conditions
  • January 26, 2018
    Friday Roundup
    Information society. Last week I did a post about Aaron Judge and the lack of hard data in the field of criminal law. We have mainly anecdotal information on what kinds of sentences judges hand down, we have no idea...
  • January 24, 2018
    A win in a search case
    Analysis of the Supreme Court's decision in State v. Banks-Harvey