By Justin Silverman
The U.S. Supreme Court decided this week to hear FCC v. Fox Television Stations, Inc., the “fleeting expletives” case that involves the broadcast of profanity and nudity at times children are most likely to be watching. The U.S. Court of Appeals for the Second Circuit last year found the FCC’s policies on profanity and nudity at the time to be too vague to enforce.
Most of the incidents prompting the case involved the fleeting and unscripted use of the word “fuck.” Cher used it in 2002 during the Billboard Music Awards. Paris Hilton said it the following year during the same award show. Bono also used it in 2003, that time during the Golden Globe Awards. They all used the word in a different way, none using it with sexual connotations. In fact, they all used the word as most foul-mouthed people do, myself included. Can’t find a more elegant way of emphasizing your point? Fuck it.
For better or worse — and probably, worse — the word is a part of American parlance. It is used in different ways to express many different things. It may be harsh on the ears to some, but as most broadcasters will argue, it is impossible to accurately depict a World War II battlefield in Saving Private Ryan without the dropping of F-bombs. The word has value. If not for accuracy in historical dramas or news reports, then its value is in the ability to witness genuine, off-the-cuff and off-the-script comments such as “fucking brilliant” — words interpreted by fans of Bono as “thank you.” The FCC policies in question are so vague, the U.S. Court of Appeals found, that broadcasters could not easily determine what uses of the word would be fined. Therefore, those broadcasters self-censored.
That vagueness may be due to the varying meanings of the word itself. How can the FCC properly regulate a word that is used so many ways and in so many contexts? Interpretation is an important factor in “fuck.” The above scene from “The Wire” is illustrative. Officers Bunk and McNulty investigate a murder using only the word “fuck” or derivatives of the word. They still manage to convey more meaning than the “fuck” our regulators are afraid of children hearing. At least that’s my interpretation.
Clearly, not all “fuck”s are the same and a policy that cannot easily distinguish them will be rightfully reconsidered. But where should the FCC draw the lines? How should it draw them? Should it even be drawing lines at all?
Justin served as founding president of Suffolk Media Law. He graduated from Suffolk University Law School in 2011. For more information please visit JustinSilverman.com.