When U2 front man Bono won a 2003 Golden Globe for a song in the film Gangs of New York, he exclaimed, live on broadcast television, "This is really, really f______ brilliant." It would have been an unremarkable moment this is the sort of thing rock stars invariably say when they win awards except that the Federal Communications Commission (FCC) used Bono's naughty words to lay down a new rule. In the future, it said, language like this could be punished with hundreds of thousands of dollars in fines levied on the networks.
The FCC, official keeper of the sanctity of broadcast television, used to be fairly easygoing about occasional naughty words. But in the middle of the Bush Administration, egged on by "pro-family" groups, it took a hard line. Fortunately, the policy which infringes on free speech, as well as just being insanely illogical has been declared unconstitutional by a federal appeals court.
But here's the craziest part of all: the Obama Administration announced last week it is appealing this very sensible ruling and sticking by the FCC's misguided indecency policy. It said the decision threatens the FCC's "ability to protect children and families." If the court refuses to reconsider the ruling, it seems likely the Administration will ask the Supreme Court to take the case.
There are two main problems with censorship regimes. First, they inevitably restrict a lot of speech people should be able to utter and listen to. That is certainly true of the FCC's "fleeting expletive" rule. The FCC has made all sorts of wrongheaded decisions about what is unacceptable. For example, it fined a small educational television station in San Mateo, Calif., for airing Martin Scorsese's documentary The Blues because it featured blues musicians who heavens to Betsy! used a little off-color language.
And when the government starts throwing around $300,000 fines, speakers quickly begin to censor themselves. Ken Burns' PBS series The War, about World War II, was broadcast in some parts of the country with the profanities scrubbed out. As Burns said at the time, they were "incredibly appropriate" words. After all, to properly capture that war in which teenage soldiers landing off the coast of France were slaughtered by German gunfire and children were shoved into gas chambers gosh and darn just don't cut it.
The second big problem with censorship is that it is generally carried out in illogical, virtually random ways. The FCC's "fleeting expletive" rules also have this fatal flaw.
The New York Citybased U.S. Court of Appeals for the Second Circuit focused on this logic problem in its decision last month in Fox Television Stations v. FCC, which found the FCC's policy to be unconstitutionally vague. (The court had struck the policy down on different grounds in 2007, but the Supreme Court reversed that ruling.)
The Second Circuit noted how arbitrary the FCC's taste seemed to be about which words were acceptable and which would prompt enormous fines. "For instance, while the FCC concluded that bulls___ in an NYPD Blue episode was patently offensive, it concluded that d___ and d___head were not," Judge Rosemary Pooler noted.
The court also pointed out how out-of-date the FCC's approach is. The agency, after all, is allowed to regulate only broadcast television; a few decades ago, the big networks had a "uniquely pervasive presence in the lives of all Americans," as the Supreme Court once put it, and was a major shaper of young minds. But in this age of cable TV and the Internet, it makes no sense to obsess over what appears on a few broadcast television stations while far more graphic language and images are just a few mouse clicks, or clicks of the TV remote, away.
There are some kinds of speech that really test our commitment to the First Amendment. In April, the Supreme Court struck down a federal law that banned certain depictions of cruelty against animals including explicit "crush videos," which appeal to sexual fetishists who want to see cats, dogs and other animals crushed to death by women wearing stiletto heels. That is an example of some truly disturbing free expression.
With its "fleeting expletives" rule, on the other hand, the FCC came down hard on Nicole Richie for an appearance on the 2003 Billboard Music Awards. Presenting an award with Paris Hilton, her co-star on The Simple Life, Richie said, "Have you ever tried to get cow s___ out of a Prada purse? It's not so f______ simple."
Moronic? Certainly. A threat to the moral fiber of the nation? We'll survive just fine.
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.