The Supreme Court and the Filthy Words You Still Can’t Say on TV
Broadcasters want to be able to live in the same dirty world the rest of us do, but the justices seem unsympathetic.
What lawyer would want to work amid nudity and filth?
Four Justices of the Supreme Court made clear Tuesday that they would not. Their determination did not waver even when former Solicitor General Seth Waxman, representing the ABC-TV network, pointed out that the famous frieze surrounding the Court’s chamber depicts various undraped figures that might subject a broadcaster who showed them on TV to hefty fines.
Waxman’s waving finger of shame — one of the most dramatic moments in Supreme Court argument since Daniel Webster shed tears over the fate of Dartmouth College — drew gasps and laughter from the crowd. It is not clear, however, that it budged the Court’s Decency Caucus, made up of Chief Justice John Roberts and Associate Justices Antonin Scalia, Anthony Kennedy, and Samuel Alito. They all but begged America’s broadcasters to remain an island of decency in a sea of filth.
America, by and large is the least censored society on earth — since at least the 1960s, dialogue in this country has not only been “robust, uninhibited, wide-open,” but dirty as well. TV broadcasters, though, live in an alternate society, under the watchful censorial eye of the Federal Communications Commission. Since 2004 at least, the FCC has taken seriously its strange mission, which is to purge the airwaves of indecency that might corrupt the young. (I say the airwaves by design, because the FCC’s statutory mandate runs only to broadcast television and radio. Cable and satellite are immune.)
The Supreme Court in recent years has refused to permit governments to suppress “virtual” child pornography, “crush” videos of animal cruelty, or vile, abusive picketing of veterans’ funerals. All this builds on Cohen v. California, a 1971 case in which the Court reversed the conviction of a protester who entered a courthouse wearing a shirt reading FUCK THE DRAFT. “Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us,” wrote Justice John Marshall Harlan in that case.