Legal News

High Court Takes on Big Bird, the ?D-Word? and Nicole Richie

By Dan Slater

Before we head to our next swing state, let’s return, briefly, to those little fleeting expletives, which, according to the Journal’s Supreme Court reporter, failed to animate the High Court this morning.

We checked in with the WSJ’s Jess Bravin as he was leaving One First Street, NE, after listening to the oral arguments in FCC v. Fox Television Stations. “It was not as colorful as some in the audience hoped because none of the specific words that have been uttered by such personalities as Bono and Cher were uttered in the courtroom itself,” Bravin lamented. “Instead, the euphemisms such as ‘f-word’ and ‘s-word’ were used. However, there was a fleeting moment of excretory reference at the end of the argument when Justice Stevens asked Solicitor General Gregory Garre if ‘dung’ – Stevens spelled it out – would be indecent. Garre said it would depend on the context. So we did get the d-word.” (Update: Click here for a transcript of the arguments.)

They also got Sesame Street. According to Bravin, SG Garre served up the most intriguing image of the day when he explained that the FCC seeks to avoid an admittedly extreme scenario in which Big Bird drops the f-word. (“We’re awaiting the transcript to see precisely what he meant,” Bravin told us.)

Justice Scalia seemed to agree with the FCC. He felt it was quite clear that this was coarse language and that it was not appropriate. “He didn’t use the term ‘common sense,’” Bravin said, “but he seemed to be saying that common sense suggested these were indecent words and that if society is becoming more tolerant of them it’s because the media has been airing them more often.”

Meanwhile, Justice Ginsburg focused on inconsistency. She said there seems to be no rhyme or reason for some of the decisions the commission has made. For example, she pointed out that a PBS documentary on blues musicians was cited for indecency because of expletives that appeared in it, while the film “Saving Private Ryan” was not.

Chief Justice Roberts asked how the FCC makes distinctions between types of broadcasts. Nicole Richie’s use of expletives at an award broadcast would seem to be verboten under the Bono rule. But how about a news report that reported Ritchie’s comments? Garre acknowledged that they’d be treated differently because the values inherent in uncensored news are more important.

Justice Breyer, according to Bravin, seemed skeptical of what TV stations would have to do in order to comply with the rule, such as ‘taped delay’ and having someone to bleep out expletives – both of which would be big expenses. Garre said the problem with the Nicole Ritchie fiasco was not that the station didn’t have taped delay – it did – but that it only had one person working it. In other words, networks will just have to spend more money on people to wait to hear dirty words.

Full post as published by Law Blog - WSJ.com on November 04, 2008 (boomark / email).