Supreme Court vs. First Amendment

Here’s an interesting first amendment debate. The Supreme Court ruled today against the four networks in a case concerning swearing on broadcast television. The case ruling says that the FCC has the authority to cite networks that have the words “s—” and “f—” slip through the cracks on the air.

Now I’m all for decency, but is the ruling a violation of the first amendment? The 1973 case of Miller vs. California ruled that obscenity is anything that contains offensive depictions or descriptions of specified sexual conduct and has no literary, artistic, political or scientific value. Obscene material is not protected by the first amendment, which is why we don’t have pornography on network television. That’s easy. The FCC was created originally to regulate licensing for radio waves and then televsion waves, and it has since evolved into a watchdog of those waves, protecting viewers not just from legal obscenities, but now the idea of “indecency.”

Indecency, as defined by the FCC, is “language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community broadcast standards for the broadcast medium, sexual or excretory organs or activities.” That’s where we get censorship of the words “f—” and “s—” as well as a select few other terms for body parts.

The Supreme Court has upheld the FCC’s fight against indecency on the airwaves, fining stations when a presenter on an awards show drops an f-bomb that doesn’t get caught on the five-second delay or when Janet Jackson’s tassled breast appears on the Superbowl halftime show (could be considered sexual conduct, but that’s another debate for another time.).

But let’s play a little devil’s advocate here: The FCC says, and the Supreme Court backs it, that you can’t say the word s— on the air because it describes excretory activities. So why can’t a character say “s—” when he stubs his toe? Why can’t someone call a situation “f—ing dumb?” Neither of those refer to the sexual or excrementory acts outlined in the FCC’s indecency policy.

Justice Antonin Scalia wrote in the ruling that the f-word, while it may not be used in sexual connotation, is offensive because of its roots in sexuality. But that means that we have moved from “obscene” to “indecent” to “offensive” in terms of what can and cannot be said on the air. At what point are the Supreme Court and the FCC overstepping their constitutional bounds? And who are they to decide which words are and aren’t offensive in the first place? The same family that is taken aback by the word “s—” is completely OK with the word “crap.” But some families can’t stand to hear either. Who’s to say that “screw” is more acceptable than “f—?” They mean the same thing, and I wasn’t allowed to say either growing up.

Now for the record, I don’t condone that language on television. There are too many children and families watching the Grammys or the Superbowl to walk that line. But as a journalist, I am a steadfast defender of the first amendment, and I think that federally regulating what words are and aren’t profane (remember, not obscene — that’s a different animal) is unconstitutional. I think that there are enough concerned parents out there to make a difference if a network decides it’s OK to air those words an a non-sexual context. That would take only a few thousand phone calls and a few advertisers dropping out to hold the station accountable. If you want proof, look no further than when the Journal published a column with the word “Christ” used in a way not referring to Jesus. We won’t be doing that again, trust us.