Jan Crawford Greenburg reports that the Supreme Court Justices will be forced to listen to some expletives in their hallowed hall in an upcoming argument.
The Court has agreed to hear a challenge to an FCC regulation that allows the FCC to punish networks for a single, fleeting use of a word like “fuck” or “shit.” The Second Circuit agreed with a brief filed by my hero Miguel Estrada, which argued that these words do not always have a sexual or excretory meaning.
Estrada’s brief is hilarious in an understated, legalistic sort of way. ABC makes Jan bleep out the bad words (ironically enough) but I am leaving them in:
…the “F-word” is often used to express intense (and clearly nonsexual) feelings—even by political leaders. For example, Vice President Cheney’s retort of “Fuck yourself” to Sen. Patrick Leahy (D-Vt.) on the floor of the Senate chamber in 2004 was widely reported. See, e.g., Cheney Utters ‘F-Word’ in Heated Exchange With Leahy, THE FRONTRUNNER, June 25, 2004.
In a display of bipartisan understanding that the “‘F-Word’” has non-sexual meanings, Senator John Kerry explained his vote to authorize the use of force in Iraq by asking “Did I expect George Bush to fuck it up as badly as he did? I don’t think anybody did.” Will Dana, John Kerry’s Desperate Hours, ROLLING STONE, Dec. 25, 2003; see 32 also Michael Elliott & James Carney, First Stop, Iraq, TIME, Mar. 31, 2003, at 172 (quoting President Bush as saying to a group of U.S. Senators, “F___ Saddam. We’re taking him out.” (omission in original)).
These usages are not remotely “sexual”—and no viewer could reasonably view them to be.
Indeed. Estrada’s argument reminds me of a passage from Joseph Heller’s book “Something Happened”:
And my boy, I can tell, is working up the courage to experiment at home with a dirty word or two. (He isn’t sure what the word fuck means, although he knows it’s dirty. He was under the impression fuck was the word for sexual intercourse, until I told him it usually wasn’t.)
In fact, Miguel Estrada might want to work that passage into his oral argument; it fits the argument pretty well.
Go over to Jan’s post for Estrada’s argument about the non-excretory meaning of the word “shit.” It’s pretty compelling. [Expletive deleted]ing brilliant, actually.
My favorite bit is the press release that FCC Chair Kevin Martin issued upon learning of the decision. You will contend that I am making this up — but it’s real. I [expletive deleted] you not.
Today, the Second Circuit Court of Appeals in New York said the use of the words “fuck” and “shit” by Cher and Nicole Richie was not indecent.
I completely disagree with the Court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that “shit” and “fuck” are fine to say on broadcast television during the hours when children are most likely to be in the audience.
The court even says the Commission is “divorced from reality.” It is the New York court, not the Commission, that is divorced from reality in concluding that the word “fuck” does not invoke a sexual connotation.
[…]If ever there was an appropriate time for Commission action, this was it. If we can’t restrict the use of the words “fuck” and “shit” during prime time, Hollywood will be able to say anything they want, whenever they want.
This is going to be an oral argument for the ages.