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Chase Utley, Bono, George Carlin, and the Justices of the Supreme Court

Who are 12 people who've never been in my kitchen?  Yes but not quite what I'm getting at.  Rather, a strange confluence of events has brought the list of characters in the title all rushing into my head.  You see, in my day job, I teach constitutional law to aspiring law students.  And yesterday the Supreme Court heard arguments in a case that could affect all of the media outlets that broadcast Chase Utley's proclamation last Friday that the Phillies were "World Fucking Champions."

The case, FCC v. Fox Television Stations, arose when Bono appeared at the 2003 Golden Globe awards.  NBC broadcast the awards live and failed to hit the "bleep" button when Bono accepted his award and exclaimed "this is really, really, fucking brilliant. Really, really, great."  The Federal Communications Commission, the agency that regulates television and radio broadcasts, responded by finding that any use of the word "fuck" has an inherently sexual connotation and that it is "one of the most vulgar, graphic, and explicit descriptions of sexual activity in the English language."

Previously, thanks to George Carlin and the 1977 case of FCC v. Pacifica Foundation, the case about Carlin's famous "seven dirty words" routine, the FCC had issued guidelines explaining what is and is not indecent on a broadcast.  Carlin's routine (which was broadcast on the radio at 2 in the afternoon) was considered indecent (and the Supreme Court upheld the FCC's power to make that determination, First Amendment notwithstanding), but the FCC developed an exception for "fleeting expletives."  That exception allowed broadcasters to air uses of expletives, including "fuck," that are not sustained or repeated.

Under that regime, what Chase Utley did last Friday would not raise any issues with the FCC as it was a one-time-only use of the word "fucking."  The many stations, both television and radio, that broadcast his statement live would be absolved of any guilt.

However, after Bono's utterance during the Golden Globes, the FCC changed its policy.  No longer are fleeting expletives exempt from the FCC's prohibition of indecency.  And the FCC has been active in censoring such expletives.  Here, from the appellate decision in the case, is a list of four incidents the FCC has found indecent under this new rule:

  • 2002 Billboard Music Awards: In her acceptance speech, Cher stated: “People have been telling me I’m on the way out every year, right? So fuck ‘em."
  • 2003 Billboard Music Awards: Nicole Richie, a presenter on the show, stated: “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple."
  • NYPD Blue: In various episodes, Detective Andy Sipowitz and other characters used certain expletives including “bullshit,” “dick,” and “dickhead.”
  •  The Early Show: During a live interview of a contestant on CBS’s reality show Survivor: Vanuatu, the interviewee referred to a fellow contestant as a “bullshitter.”

In those cases, the FCC reaffirmed its policy that any use of the word "fuck" is presumptively indecent and profane and expanded the policy to the word "shit" as well.  Under this new policy, Chase Utley's utterance, even though fleeting and not repeated or sustained, would be considered indecent and profane, and the stations that broadcast it would be subject to penalty by the FCC.

However, yesterday, the Supreme Court heard oral argument in the case that challenges the FCC's new policy.  Early indications are that the Justices were mixed about how they received the new policy, and the case involves more the nuances of administrative law than big issues of First Amendment speech regulation.  So predicting how the Court will rule (which it will do by the end of June at the latest) is difficult at this point.

But I have no doubt of one thing:  all the Philadelphia channels that broadcast last Friday's ceremonies are closely watching the outcome of this case.  Chase Utley's utterance could become very costly to them.