Shorter Court Of Appeals: “They’re Just Words. Shit Happens”

Ken AshfordCourts/Law1 Comment

Gotta love this profanity-laced decision (PDF) of the U.S. Court of Appeals.

The issue was whether the FCC was being too arbitrary in fining the national networks for indecency — specifically, for the occasional profanity that leaks through.  For example, at the live telecast of the Golden Globes a few years ago, Bono got up there and said "This is really really really fucking brilliant", and Fox got fined. 

More recently, during a live news telecast from Iraq, an explosion scared a reporter and the soldier being interviewed, the latter exclaiming "Fuck!".  For that, the network got slammed with an FCC fine.

The Court of Appeals decision takes the FCC to the woodshed.  They note, quite correctly, that sometimes (like in the examples above), the network cannot be responsible for the "indecent" material that occasionally leaks through — what the court calls "fleeting expletives".  Moreover, they stick in a little dig, as the New York Times reports:

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.


Reversing decades of a more lenient policy, the commission had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.

For those of you who don’t know what that last bit was about, it’s when Cheney turned to Leahy and said "Go fuck yourself".

In an ironic response to the court’s ruling, the FCC chairman put out a press release (PDF), complete with four-letter words.  It begins:

Today, the Second Circuit Court of Appeals in New York said the use of the words "fuck" and "shit" by Cher and Nicole Ritchie was not indecent.

The press release, of course, only proves the court’s point — if the FCC in its official capacity can release a public document (like the press release) which contained "dirty words", then how can the FCC fine the networks for the very same thing?