Use of the "F-Word" on TV, even as an adjective, is now unlawful

Marty Lederman marty.lederman at comcast.net
Fri Mar 19 15:27:30 PST 2004


Upon receiving the award for Best Original Song at the Golden Globe Awards, Bono exclaimed "This is really, really fuckin' brilliant -- really great."  NBC broadcast the ceremony.  The FCC yesterday overturned longstanding FCC precedent and held (unanimously) that even such an "isolated and fleeting" use of what the Commission calls "the F-Word" as an adjectival "intensifier" -- i.e., as a synonym for "really" or "incredibly" -- is both indecent and profane when uttered on tv or radio, thereby violating 18 U.S.C. 1464 on both grounds.  http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-43A1.pdf  (Violations of section 1464 can be punished both civilly and criminally, although the Supreme Court in Pacifica was careful not to opine on the constitutionality of the criminal sanctions.) 

As for indecency, the Commission concluded, inter alia, that the use of "fuckin'" in this manner "does depict or describe sexual activities" -- indeed, that any use of "fuck" in any context, "inherently has a sexual connotation."  The Commission also held that the use of the word is patently offensive under contemporary community standards for television (although it suggested in a footnote that there might be exceptions for use of the word as an "integral part of a bona fide news story").

The Commission's "independent" ground for its holding -- that the use of the word was profane -- was even more groundbreaking, for the first time extending that notion beyond blasphemous speech.

Even assuming that this is a permissible interpretation of the statute -- which is by no means certain -- does anyone think that this holding would withstand constitutional scrutiny?  If so, presumably Congress could shut down the Sopranos and radically restrict huge portions of HBO and several other networks, since for purposes of assessing the constitutionality of indecency regulation, there does not appear to be any ground for treating cable and network tv differently.  See Denver Area, 518 U.S. at 748 (plurality); see also id. at 776 (Souter, concurring).  
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