Indecency: How Can They Judge It If They Can't Even Say It?

JESUSLANDThe New York Times' Adam Liptak brought up an important point in his column published yesterday, "A Word Heard Often, Except at the Supreme Court." That word, of course, is "fuck," and as Liptak points out, possibly reflecting on the high court's impending decision in Federal Communications Commission (FCC) v. Fox Broadcasting and its possible cert grant to FCC v. ABC, Inc., "The justices do not want to hear the word even when the case before them turns on it."

AVN, of course, covered the arguments in FCC v. Fox in both its first and second appearances before the Supremes, and nowhere in either argument transcript, each over 60 pages in length, are the words "fuck" or "shit" even mentioned, even though the entire dispute centers around celebrities Cher and Nicole Richie saying those words on national broadcasts of the Billboard Music Awards.

But as Liptak notes, even though Fox's attorney Carter Phillips told SCOTUSblog, the independent blog that covers happenings at the high court, that "'It is hard to argue parts of the case' without saying what it was about," and "Unless the court tells me not to, I would not shy away from using those words," when he finally stood at the rostrum, neither of the "vulgarities" at issue passed his lips.

Try to imagine a Supreme Court appeal involving bank robbery where neither of the parties nor any of the justices used the phrase "bank robbery"!

The Second Circuit, which handled both of the appeals, of course had no problem with the words, especially since one element of the "crime" was whether the words were used in a sexual context (bad) or just an off-the-cuff exclamation (protected)—and that's without even considering the FCC's change in attitude since 2003, when it decided that so-called "fleeting expletives" were just as "bad" as, say, a Colorado Springs TV station last month broadcasting a porn movie instead of the scheduled showing of Good Morning America ... or when an Arizona station broadcast half-a-minute of porn during the 2009 Super Bowl game.

Liptak goes on to call attention to the high court's hypocrisy in avoiding the allegedly "indecent" words when its primary precedent on the subject is Cohen v. California, a 1971 case involving a 19-year-old student who wore a jacket emblazoned with the words "Fuck the Draft" in a corridor outside the Los Angeles Municipal Court. Although the justices held (admittedly by a 5-4 majority) that wearing the jacket did not constitute "offensive conduct" because it did not, as the California Second Appellate District had found, cause "behavior which has a tendency to provoke others to acts of violence or to in turn disturb the peace," they still couldn't bring themselves to say the word when announcing the opinion from the bench.

Liptak reports that according to Thomas G. Krattenmaker, a clerk for Justice John Marshall Harlan, who wrote the majority opinion, "When it came time for Justice Harlan to announce his opinion from the bench, Chief Justice [and Nixon appointee] Warren E. Burger warned him not to 'use that word' because 'it would be the end of the court' if he did, Justice Harlan told Mr. Krattenmaker. The announcement was free of vulgarity." "That word" does appear once, however, in the opinion itself, apparently added in the final revision by Harlan himself. Burger's instruction apparently was inspired, at least in part, by liberal Justice Hugo Black's statement to one of his law clerks that the reason Black voted with the Cohen minority was "because he could not imagine having his wife encounter 'that word.'"

Burger was equally restrictive with Harry Plotkin, the attorney arguing for the right to broadcast George Carlin's "seven dirty words" monologue on the radio, in FCC v. Pacifica Foundation: "You may bear in mind that we are familiar with the facts of the case and get directly to your legal argument," the chief justice ordered. As Liptak points out, Plotkin followed that directive ... and lost his case.

Another justice whose ears are too tender to deal with "indecent" words is Antonin Scalia. Liptak reports that during argument in the second round of the Fox case, Scalia had no problem trampling on broadcast speech rights when he told Solicitor General Donald Verrilli, "Sign me up as supporting Justice Kennedy's notion that this [decency code] has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It's a symbolic matter."

Trouble is, companies that violate the FCC's changing decency regulations get to pay real, not symbolic, fines in the millions of dollars.

And at least some conservative "cultural activists" don't plan to stop at lodging complaints about what they hope the FCC will someday recognize as "indecency." For instance, Parents Television Council, whose online campaigns resulted in more than a million complaints about the half-second shot of Janet Jackson's tit during the 2004 Super Bowl halftime telecast, has recently gone after two new TV offerings: ABC's comedy Don't Trust the B---- in Apartment 23 and Lifetime's drama The Client List.

"They're calling it Don't Trust the B____ in Apartment 23—but of course everybody knows what that 'B' stands for," said PTC's Melissa Henson. "It is some of the sleaziest content I have ever seen."

Among the things PTC doesn't like about the show:

• The "B," Chloe, lives across the alley from a perv for whom she puts on nude shows (completely computer-masked for broadcast, of course, and likely not even nude on the set), which he apparently masturbates to, though everything below his waist is hidden by the window sill.

• Chloe confronts her new roommate, June, taking a bath, and when June asks for privacy, Chloe inquires whether she was masturbating, then informs her, "Don’t worry, I get it. I have a long-standing sexual history with that tub. It’s like I’m Jessica Tandy and that tub is Hume Cronin. Don’t mind me, get your Cronin on."

• Chloe gives alcohol to a 12- or 13-year-old boy to get information from him about June's unfaithful fiancé. He drinks until he throws up.

And, of course, included is the inevitable PTC online complaint form that supporters can sign and click, which PTC will file with the FCC.

As for The Client List, PTC founder Brent "Bozo" Bozell wrote a screed on it for, the Heritage Foundation propaganda site. Seems Bozo has a problem with the fact that the heroine, Jennifer Love Hewitt, is a prostitute, having been driven to that profession after having lost her previous executive-level job and her husband having taken off for parts unknown, leaving her to care for their two kids with the generally unhelpful help of her mom, played by Cybill Shepherd.

But part of Bozo's problem is that the series uses none of the hooker clichés usually associated with TV prostitutes. For instance, while Jennifer wears low-cut blouses and bends over quite a bit, there are no "almost caught naked" moments, and her clients are uniformly handsome, which Bozo describes as "another dose of nonreality."

"Like most people in Hollywood, Hewitt wants to push the envelope in what she calls a 'provocative, unapologetic manner' to make her millions," Bozo writes. "Then she demands that no one ever protest that she's making prostitution look glamorous and morally acceptable. ... This woman has the brain of a text message. 'K?"

"None of this has anything to do with reality," Bozo concludes. "Lifetime based its TV movie and subsequent series on an Odessa, Texas, massage parlor called 'Healing Touch.' But the real story ended up with 68 arrested clients—including an assistant district attorney, a city planner, the owner of an insurance company, several teachers, and a well-known rancher. Two of the three sex workers there were strung out on cocaine."

Um ... wouldn't that seem to indicate that rather than being "another dose of nonreality," the show is based upon the real activities carried on in a real establishment which counted among its clients some of the real people that Bozo would expect to be among the community's most upstanding members? And the fact that the massage parlor in the series hasn't been busted yet is certainly no guarantee that it won't be in an upcoming episode.

"Lord" knows whether Don't Trust the B or The Client List will wind up as part of a Supreme Court case if Republicans gain the presidency and majorities in Congress, but going forward, as society continues to more fully accept "indecent" language and images as part of everyday life, the FCC's prohibitions against such words and images will be seen more and more as relics of the past.

But if those called upon to judge people and companies who run afoul of those regulations fail to have their fingers on the pulse of America's increasingly progressive society, where the officially banned words now show up in everything from websites to emails to text messages to common, ordinary, everyday conversation, it will simply add fuel to the perception that the Supremes aren't doing their job properly. In fact, the latest poll numbers from the Pew Research Center indicate that just 56 percent of Republicans and 52 percent of both Democrats and independents hold a favorable view of the high court—and that's a huge problem, considering that those nine justices are sometimes the only thing standing between, say, the adult industry and the conservatives, fundamentalists and law enforcement agencies that would dearly love to see the industry go the way of the dodo bird.