Indecency and the Supreme Court
posted by David Orentlicher
In FCC v. Fox, the Supreme Court once again took a pass on the first amendment questions raised by the regulation of indecent images or speech on broadcast television. It is a good thing that the justices want to take their time to get it right on the constitutional issues, but ten years have passed since the case was first triggered by Cher’s use of the F-word at the Billboard Music Awards. And the Court’s decision today suggests it hopes the matter will just go away. As Justice Kennedy concluded for the majority, “this opinion leaves the [FCC] free to modify its current indecency policy.”
The Court’s discomfort with indecency is not surprising. The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.
But once again, it leaves us to wonder why our society seems to worry more about exposing children to even brief uses of profanity or depictions of nudity than it does about exposing kids to prolonged violence. The FCC does not restrict violence the way it does indecency on television, movie ratings are tougher on indecency than on violence, and the Court has a lower threshold for government regulation of violence than of indecency. Recall, for example, that last year, the Court invoked the first amendment to override California’s ban on the sale of violent video games to minors, and two years ago, the Court rejected on first amendment grounds a federal statute that outlawed “crush” videos depicting the torture and killing of animals.
It may be correct to be as careful as we are about the harms to children from the media’s use of nudity and vulgar language. But we also should take more seriously the harm from the media’s depictions of violence.
June 21, 2012 at 12:10 pm
Posted in: Constitutional Law, First Amendment, Media Law, Movies & Television, Supreme Court
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Responses (4)
Joe - June 21, 2012 at 12:21 pm
Justices Harlan and Stevens in Cohen and Pacifica managed to write out the whole word. I guess justices these days are more modest than they were.
A.J. Sutter - June 21, 2012 at 12:35 pm
@Joe: Modest in their language, perhaps, but not necessarily judicially.
Superstantial - June 21, 2012 at 1:23 pm
It’s too bad that Moreno wasn’t nominated for the Court. He would have said “fuck” – not that he was ever vulgar, far from it, but he was not afraid of language.
James - June 21, 2012 at 6:23 pm
“The justices’ discomfort reflects that of much of society. Indeed, they could not bring themselves to actually say the F-word at oral argument.” Apparently, neither could you! The word is “fuck,” just FYI.
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