How about a legal case involving sex, drugs and rock and roll? How about two out of three? Yesterday the U.S. Court of Appeals for the Second Circuit in Manhattan struck down a new Federal Communications Commission policy that penalized the broadcast networks whenever they aired an utterance of a "fleeting expletive." Here's a bit of background, and I promise that it's fun:
The FCC's rules prohibit "obscene" and "indecent" (very naughty but not quite obscene) language over the airwaves to varying degrees. "Indecent" language is restricted to the 10 p.m. to 6 a.m. time slot. The definition of "indecent" includes a sexual element. In other words, the profanities uttered by the soldiers in "Saving Private Ryan" or by Bob Vila when he hits his thumb with a hammer generally are not prohibited. This is intended to strike a delicate balance with the First Amendment, which prohibits Congress from making any law restricting free speech.
But along comes the Bush Administration, and, surprise surprise, it panders to the right wing by upsetting this balance and going overboard. During the 2003 Golden Globe Awards broadcast on NBC, Bono joyfully exclained, "this is really, really f***ing brilliant!" After receiving viewer complaints, the FCC overruled its own staff and found NBC in violation of FCC rules. According to the FCC's new interpretation, any use of the f-bomb is automatically sexual. Really, I think Tony "f***ing cock-a-roach" Montana would be surprised.
Since the Bono incident, the Bush FCC has rendered more such absurd rulings. After the famous 2004 Super Bowl halftime incident involving Janet Jackson's "wardrobe malfunction," this FCC effort picked up steam. Last year, the FCC ruled that Fox Television Network violated the rule during the 2002 and 2003 Billboard Music Awards telecasts when, respectively, Cher and Nicole Richie dropped the f- and s-bombs in individual exlamations similar to that of Bono. Fox sued the FCC, arguing that the FCC's "fleeting expletive" policy contradicted its rule and the First Amendment. NBC, CBS and ABC joined Fox in the lawsuit.
In yesterday's decision, the Court of Appeals agreed with the tv networks, and struck down the new FCC policy as arbitrary and capricious. My favorite part of the Court's ruling is where it picked up on NBC's argument that the fleeting expletives for which the FCC found the networks in violation were no worse than expletives recently uttered by George W. Bush and Dick Cheney. Bush last year was caught on videotape uttering "s**t" to Tony Blair at the G-8 Summit. In 2004, Cheney yelled "Go f**k yourself!" at Senator Patrick Leahy on the Senate floor. Presumably, NBC argued that, as a matter of Equal Protection, the same Bush Administration that had fined the television networks for their "fleeting expletives" must also fine Bush and Cheney for theirs. Delicious.
The FCC could appeal the Court's decision, possibly even to the U.S. Supreme Court, which we know now has a 5-4 majority in favor of anything the Bush Administration wants, the Constitution be damned. But for now, at least, an Appeals Court in Manhattan has brought us one step closer to Constitutional sanity.