The arguments heard by the Supreme Court today in FCC vs. Fox Television Stations may have been, to quote U2 front man Bono, "f***ing brilliant"—but it's the court's decision that will determine whether you can describe them that way on television.

The case stems from the 2002 and 2003 Billboard Music Awards, at which Cher and Nicole Richie shocked audiences by uttering expletives normally employed only by sailors, street ruffians, and Dick Cheney. The Federal Communications Commission determined that the mal mots were "indecent" during primetime broadcast hours, but the broadcaster fought the ruling. Last year, the Court of Appeals for the Second Circuit concluded that the Commission had been "arbitrary and capricious" in changing its policy to bar even "fleeting" expletives used as intensifiers, in violation of the Administrative Procedures Act.

In principle, the Court could ask the Commission to explain its reasoning more fully and kick the case back to the Second Circuit for review under that statute. But as Ruth Bader Ginsberg acknowledged Tuesday morning, there was an "elephant in the room": The First Amendment.



Cher about to drop an f-bomb

The Court held 20 years ago, in FCC v. Pacifica, that "indecent" (even though not necessarily "obscene") language—in the instance, George Carlin's now infamous Seven Dirty Words routine—could be barred from the "uniquely pervasive" public airwaves, which were a scarce resource that could be regulated in the public interest by the Commission. But as Ginsburg observed, "That was before the Internet. Pacifica was in 1978." Have changing technology and changing social mores rendered the Court's broadcast censorship jurisprudence obsolete?

Solicitor General Gregory Garre argued, on the government's behalf, that they had not, and offered up the grim specter of "Big Bird dropping the F-bomb on Sesame Street" if the FCC were defanged. Even Chief Justice John Roberts, who along with Justice Antonin Scalia appeared openly sympathetic to the government's position, wondered whether the arguments the Pacifica Court had relied upon "still have the same force today when the broadcast medium is only one of several that are available," noting that it seemed doubtful that much was achieved by applying stringent rules to a few broadcast channels while many more cable channels and online videos operated without such restrictions.

Just the opposite, Garre argued: because there are now so many venues for Tarrantino-esque streams of vulgarity, the restriction on speech imposed by censorship of the airwaves was much less significant. And the argument for providing an unambiguously safe space for those who opted out of cable's vast cesspool that much stronger.

Fox attorney Carter Phillips disagreed, citing the case of a Vermont public television station that had decided not to air a debate between several Senate candidates because one had "used expletives in a previous public forum," and the station could not afford the kind of time-delay equipment that Garre recommended networks use. (Especially, Garre added, when they know they'll be airing a notorious potty-mouth like Nicole Richie.)

Several justices seemed inclined to steer clear of the big constitutional questions and decide the case on procedural and statutory grounds. But Phillips insisted that the two were inextricably intertwined. "It seems to me a completely artificial inquiry," Carter argued, "to look at this as though you're regulating the price of oil going through a pipeline. At the end of the day you are regulating the content of speech."

At an event in September, former FCC Chairman Michael Powell voiced his own regrets about having supported the "fleeting expletives" ban, arguing that the Commission had "gone way too far—we are dancing with the limits of the Constitution." Powell said that the rule change had been "a terrible mistake—and I voted for it." The entertainment industry has also urged the Court to save the F-bomb, while a slew of decency groups have equally fervently insisted the justices hold the line.

But where exactly is the line? Some of the exchanges between the justices and the lawyers made clear just how muddled that question can get. Justice John Paul Stevens, for example, wondered whether it might be appropriate for FCC "to take into consideration at all the question whether the particular remark was really hilarious—very, very funny?" Garre allowed that as part of a contextual analysis, it might be, to the relief of Justice Scalia, who opined that "bawdy jokes are okay if they are really good."

And then there was the question of the grammatical role of an expletive. "Isn't it true that [the F-bomb] is a word that often is used with no reference whatsoever to the sexual connotation?" asked Stevens. Garre again conceded that it "can be used in a metaphorical way, as Cher used it here, to say 'F them' to her critics." Even the person uttering the word—impressionable children might be especially prone to emulate celebrities—played a role.

Whichever way the Court comes down, civil libertarians will have occasion to utter some expletives of their own—the only question is whether the cry will be "Oh F***!" or "F*** yeah!"