Another Supreme Court Battle on What is Allowed as Free Speech

Justices Appear to be Inserting Their Own Private Biases in the Speech Issue – Again

One of the problems of a democracy such as we have in the United States is that every now and then ridiculous issues end up in the highest court of the land.  Such is the case with the Supreme Court having to decide whether or not the FCC has the power to fine television networks if bad words or partial nudity creeps into a broadcast.

In 1978, in Federal Communications Commission v. Pacifica Foundation, the court said the government could restrict George Carlin’s famous “seven dirty words” monologue, which had been broadcast on the radio in the afternoon. The court relied on what it called the uniquely pervasive nature of broadcast media and its unique accessibility to children.

Neither point still holds, lawyers for two networks told the justices. The case, Federal Communications Commission v. Fox Television Stations, No. 10-1293, arose from the broadcast of fleeting expletives by celebrities on awards shows on Fox and partial nudity on the police drama “NYPD Blue” on ABC.

While predicting where the Court will rule based on the oral arguments is impossible, it does look like the Court is inclined to support government regulation of speech in this case.

Justice Antonin Scalia, who in other settings has been hostile to government regulation of speech, said there was value in holding the line here.

“This has a symbolic value,” he said, “just as we require a certain modicum of dress for the people that attend this court.”

“These are public airwaves,” Justice Scalia went on, adding: “I’m not sure it even has to relate to juveniles, to tell you the truth.”

Chief Justice John G. Roberts Jr., the only justice with small children, seemed to stumble in describing what was at stake.

“All we are asking for —— , ” he said, and then he corrected himself. “What the government is asking for is a few channels where you can say they are not going to hear the S-word, the F-word. They are not going to see nudity.”

As far as the importance of this case, The Dismal Political Economist does not see any.  Whichever way the ruling goes, it is not likely to have any real impact on freedom, censorship or government regulation of speech and content.  It’s just not a big impact issue.  Network broadcash television is far along a journey to its inevitable decline and possible demise altogether except for sports, news and in the case of Fox News, fiction.

But everyone should remember that this Court ruled that the Congress cannot limit how much billionaires and corporations spend on political campaigns, under the argument that such limitations violate the rights of free speech, that is the right of one side to drown out all opposing views.  So in thinking about which is more obscene, unlimited money in political campaigns that corrupts the process, or a few fleeing glimpses of partial nudity and a few bad words kids hear every day on the school bus, well it is pretty clear where the obscenity lies. 

But with a Supreme Court that votes its personal preferences and not the Constitution, well, don’t expect to see any rationale decision here.