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Monday, June 15, 2009
Who's afraid of offensive speech?
The pre-argument gag rule that the Court imposed in FCC v. Fox Television earlier this term, as described in Jay's post is appalling. If the words "fuck" and "shit" (see, no euphemisms here) are too unseemly for the Court's "hallowed," doesn't that effectively prejudge the question of their constitutional and legal status? How can the Court genuinely evaluate the words as a legal matter if the Court cannot even utter them or hear them uttered? It would be as if the Court were deciding whether a movie is constitutionally protected without watching the movie or discussing what is going on in the movie.* Or evaluating whether some photographs should be admissible without viewing or discussing what is depicted in those photos. Or evaluating whether racist or sexist words should be protected without discussing these words and their meaning and their context.
It is precisely within the "hallowed" walls of the courtroom (and the classroom, I would add) that we can and should truly deliberate and reason about how we should understand these matters, openly mentioning and discussing things that we might not (or should not) mention in society itself. The courtroom is the last place in which anything that is the subject of a legal dispute should be deemed too unseemly for full discussion and consideration, which necessarily presumes that the unmentionable must be mentioned.
- Justice Douglas famously refused to watch the movies in the Court's obscenity cases, on his belief that it really did not matter what was in the movie because it was constitutionally protected. And I suppose we could criticize him for prejudging matters, just as we would if Justice Scalia refused to watch the movies because regardless of what was depicted, it was obscene. The difference, it seems to me, is that Douglas was not saying that the movies are OK (or potentially OK) for society at large but inappropriate within the courtroom because the courtroom is somehow "cleaner" than the hurly-burly of daily conversation.
Posted by Howard Wasserman on June 15, 2009 at 07:06 PM in First Amendment, Howard Wasserman | Permalink
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Comments
Oh Quiet One -- I don't think a clinical, adult reference to the actual words in the record would have been gratuitous.
Although the Court limited its inquiry into the propriety under the APA of the FCC's enforcement change, the case is still fundamentally about whether a rational basis exists for holding very specific words to be indecent. Although it's always unclear at argument whether saying ANYTHING is helpful, I could easily posit that the clinical utterance of the words -- 'de-fusing" them -- would reinforce for the Court the argument that the FCC's sudden change on fleeting utterances was arbitrary and capricious.
ANd I'm disappointed in the Court. I think their emphasis on "propriety" -- while *justified* -- came at the expense of demonstrating the cool clarity of logical inquiry, and hints of a juvenile discomfort with certain words. A clinical examination of the words, without restriction -- when they patently wouldn't have been "gratuitous," since they are central to the complaint -- would have been more dignified, imo.
Thanks.
Posted by: Mister Muleboy | Jun 17, 2009 11:26:23 AM
I don't see why you're so worked up about this. The Court didn't prohibit the parties from identifying the words, it told them not to say them out loud in the courtroom. Judges are generally pretty big on decorum; that's why you wear a coat and tie to court. Most people have some sense of that. I sometimes say "shit" and "fuck," but not in church.
And as for your suggestion that the justices were "prejudging" the matter, it doesn't follow. Again, the Court knew what the words were, it just prohibited speaking the words in open court. The Court could hear a free expression case about nudity without allowing attorneys to argue in the nude.
I would have more sympathy for your argument if you identified some way in which speaking the words "shit" and "fuck" would have helped Fox. But otherwise, it's just gratuitous profanity.
Posted by: The Quiet Lawyer | Jun 17, 2009 1:51:16 AM
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