At the 2003 Golden Globes, U2 front-man Bono accepted the award for Best Original Song in a Motion Picture (Martin Scorcese’s Gangs of New York), and when Bono took the microphone he was apparently speechless, because all he could say was: “This is really, really…fucking brilliant!” (footage of the live broadcast available here). Probably not a big deal, but for the fact that the awards show was broadcast live on NBC networks across the nation.
At first, the incident wasn’t a big deal. The FCC received a few complaints, but mostly from a single special interest group. The Commission issued a no-liability opinion, based on the fact that Bono’s use of the word fucking was non-sexual. That is, Bono used fucking as an adjective, not as a verb. The verb form of fucking obviously describes a sexual act, which is explicitly prohibited under FCC broadcast regulations.
Despite the FCC’s decision that Bono’s so-called fleeting expletive was just that, more than a year after the incident, the Commission reversed course and issued a new opinion that any use of the word fuck is per se sexual. But after ABC broadcast an uncensored version of Saving Private Ryan in November 2004— which used the word fuck repeatedly over the course of several hours—the Commission said that there was no problem because the soldiers’ use of fuck in the film did not “pander, titillate, or reflect shock value.” The Commission instead found that the soldiers’ language was reasonable in the context of being at war, and amidst unspeakable conditions and peril.
Not surprisingly, in 2007, the U.S. Court of Appeals for the Second Circuit found the FCC’s indecency policy arbitrary and capricious (see the oral argument here). But the FCC took the case to the U.S. Supreme Court, which reversed the Second Circuit’s ruling. In 2010, the Second Circuit heard the case again, and this time decided that the FCC’s policy was unconstitutional, on the grounds of vagueness. Now the case is headed back to the Supreme Court. Justice Sonia Sotomayor has recused herself from hearing the case, because she was a sitting judge in the Second Circuit when the case was there.
It’s difficult to predict how this case will come out, but given my familiarity with the subject matter, and the specific facts, my guess is that, as strict constructionists, Justices Scalia and Thomas will vote to affirm. Justice Alito and the Chief Justice will almost certainly go the other way, because I just can’t imagine either of them taking a position that made it permissible for someone to use the word fuck.
The case is Federal Communications Commission v. Fox Television Stations, Inc., et al., No. 10-1293. Because of all the appeals and remands, the case history almost resembles a spider web: