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Jewish World Review
May 1, 2009 / 7 Iyar 5769
Expletive Deleted … For Now
The Supreme Court of the United States is a redoubt of decorum in a
casual Friday world. The justices still wear robes. The assembled
attorneys, journalists, and interested observers still rise when the
robed ones enter the chamber. Lawyers still begin their oral argument
presentations by intoning the words "May it please the court."
But when the justices convened last Nov. 4, they were hearing arguments
about whether the "s- word" and the "f- word" can be legitimately
regulated by the Federal Communications Commission. In a decision handed
down last week, the Court ruled 5-4 on behalf of the FCC. But the fact
that this sort of thing had to be decided by the Supreme Court reminded
me of what a wise man once said, "It's difficult to be too much better
than the age in which you live."
At issue was the Federal Communications Commission's decision to levy
fines on Fox Television after Cher and Nicole Ritchie used those
offending words during a televised awards ceremony. The justices got
into a major tussle over administrative law, and specifically over the
question: Do the words in question have to be referring to "excretory"
or "sexual" meanings in order to be forbidden on national television?
The FCC had explained that "any strict dichotomy between expletives and
descriptions . of sexual or excretory functions is artificial" because
"an expletive's power to offend derives from its sexual or excretory
meaning." Justice John Paul Stevens denied that and presented his own
anodyne interpretation. "The customs of speech refute this claim:
There is a critical distinction between the use of an expletive to
describe a sexual or excretory function and the use of such a word for
an entirely different purpose, such as to express an emotion. One rests
at the core of indecency; the other stands miles apart. As any golfer
who has watched his partner shank a short approach knows, it would be
absurd to accept the suggestion that the resultant four-letter word
uttered on the golf course describes sex or excrement and is therefore
indecent. But that is the absurdity the FCC has embraced in its new
approach to indecency. Even if the words that concern the Court in this
case sometimes retain their sexual or excretory meaning, there are
surely countless instances in which they are used in a manner unrelated
to their origin. These words may not be polite, but that does not mean
they are necessarily 'indecent' under (U.S. Code) 1464."
I don't know what it means to "shank a short approach" and am perhaps
thereby disqualified from opining on this subject, but surely Justice
Stevens cannot seriously be suggesting that uttering swear words is not
indecent. Even a sorely tested golfer who let fly with such a word under
the duress of seeing his partner (note: it's apparently not the justice
himself who commits these unpardonable errors on the links) shank a
short approach could be expected to apologize immediately to all within
hearing (and particularly to the hapless partner) for his bad manners.
Americans even have a phrase for such situations: "Please excuse my
Liberals are always on the ramparts attempting to kneecap tradition and
standards. The New York Times was sure that expletive use on TV was no
problem. "There is scant evidence that the public is up in arms about an
occasional coarse word. The words the commission finds so offensive, and
so in need of punishment, are the sort commonly heard in PG-rated movies
and walking down the street." Actually, the FCC had received many, many
complaints about the language (and more) on television, which remains,
despite technological advances, uniquely invasive into people's lives.
Besides, the fact that these words have been so aggressively foisted
upon us by Hollywood does not mean that they have lost their power to
offend. I heard a linguist recently lecturing on the effect that hearing
profanity produces in the brain. All sorts of hormones and chemicals are
activated, whether we say we're offended or not.
This is not a new story, of course. In 1971, the Supreme Court decided a
case (Cohen v. California) that concerned a 19-year-old who had worn a
t-shirt saying "F- the Draft" in a Los Angeles courthouse. The Court
held that Cohen's conduct was protected by the First Amendment. "One
man's vulgarity is another's lyric," wrote Justice John Marshall Harlan.
By such steps we have arrived at where we are. Just a tip practice up
before taking to the golf course with Mr. Justice Stevens.
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