The legal distinction between the F-word and the S-word

June 5, 2007, 7:43 PM UTC

In an important ruling yesterday, which you may have already seen reported in either the New York Times (here) or the Wall Street Journal (here), the federal appeals court in New York rebuffed and invalidated the Federal Communications Commission’s attempt to crack down on dirty words on broadcast television. But what you might not have heard about yet was the subtle judicial exegesis (contained in footnote 18 of the dissenting opinion) on the distinction in legal status between the F-word and the S-word.

Incidentally, I am using the demure-to-the-point-of-nauseating phrases “S-word” and “F-word” because my earlier feature story about this case (entitled “Bleep Deprivation,” and published in the March 19 issue of Fortune) stirred some internal controversy at the time with some of our partners and affiliates, because it used the actual, unexpurgated Anglo-Saxon expletives at issue. That story is now available here. (Alternatively, you can see what it looked like in the magazine (with graphics) by following these instructions: click here for the digital version of that whole issue; then click on the magazine photo; then click on the window where it says “C1 of 233”; when the window goes blank, type in “53,” which is the page number of the story; then click “enter.”) (For FCC chairman Kevin Martin’s unprintable reply to the ruling, try here .)

In any event, in yesterday’s ruling, in Fox Television Stations v. FCC, two of the three judges on the appeals panel decided that the FCC had acted “arbitrarily and capriciously” when, in 2004, it did an abrupt about-face in longstanding policy and discarded its so-called “isolated and fleeting expletives doctrine.” Under that doctrine, the FCC had, until then, essentially given broadcasters of live TV a free pass if someone unexpectedly ran off the reservation and used one or two expletives in isolation. Beginning in early 2004, however, after Bono used the F-word in accepting a Golden Globe award on a live broadcast on Fox Television Stations – a unit of News Corp. (NWS) – the FCC decided to crack down and begin imposing a one-strike-you’re-out rule. It later also applied the new rule to two similar incidents on the Billboard Music Awards, which were being broadcast live by NBC, a unit of General Electric (GE). (Viacom (VIA) also intervened in the case; It is still challenging, in a federal appeals court in Philadelphia, the fine levied against it for the Janet Jackson incident during Super Bowl XXXVIII, which was broadcast on CBS (CBS) and produced by MTV.)

The two judges in the majority, Judges Rosemary Pooler and Peter Hall, said the FCC had failed to articulate a reasonable basis for the shift in policy. They also strongly hinted that the FCC should not waste its breath trying to provide a more convincing statement of reasons now since, in all likelihood, the policy it tried to enforce would probably be unconstitutionally vague in any event.

The third judge on the panel, Pierre Leval, dissented. Interestingly enough, however, he did so only as to the F-word. He felt that while the FCC had adequately justified its decision to regulate even a single use of that word, he agreed with his colleagues that such draconian regulation of the S-word would probably violate the law and, possibly, the constitution. He reasoned that back in 1976, when the U.S. Supreme Court first upheld the federal law that purports to outlaw indecency in radio and TV broadcasts, it emphasized “the accessibility of broadcasting to children.” Judge Leval then continued: “The potential for harm to children resulting from indecent broadcasting was clearly a major concern justifying the censorship scheme. In this regard, it seems to me there is an enormous difference between the censorship of references to sex and censorship of references to excrement. For children, excrement is a main preoccupation of their early years. There is surely no thought that children are harmed by hearing references to excrement.”

Though this is just a dissenting opinion of course, even dissents can become influential over the years if they have persuasive force. So tell me readers and parents, given children’s “preoccupation” with excrement, should the regulation of fleeting and isolated references to “s–t” be unconstitutional?