The Supreme Court today granted cert. in FOX v. FCC, a case revolving around the use of ‘fleeting expletives’ on national TV. Jan Crawford Greenburg has some wonderful analysis on the case on her ABC blog here. She quoted from Miguel Estrada’s (yes, that one) brief for NBC and I just had to reproduce it here in it’s full glory:

“…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. An administrative agency like the Commission cannot promulgate a legal standard that declares to the broadcast community that, “[i]n making indecency determinations, context is key,” In re Infinity Broad. Corp., 17 FCC Rcd 9892, 9895 (2002) , but then adopt a one-size-fits-all, per se rule that expressly disavows any contextual analysis of the meaning of the “‘F-Word.’”

While “shit” can refer to excrement or excretory function, it also can refer, “[i]n negative contexts,” to “anything.” IV OXFORD ENGLISH DICTIONARY SUPP. 124 (1972). It denotes “[r]ubbish, trash,” “[m]isfortune, unpleasantness,” or an “awkward predicament” (such as when “the shit. . . hits the fan”). Id. at 125. And bullshit has no excretory implications; it means simply “[r]ubbish, nonsense,” or “to bluff one’s way through (something) by talking nonsense.” I OXFORD ENGLISH DICTIONARY 645 (2d ed. 1989).

The “‘S-Word’” has non-excretory application in public discourse, as well. In July 2006, as reported in newspapers and aired on cable networks, President Bush remarked to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit.” Peter Baker, Bush’s Bull Session: Loud and Clear, Chief, WASH. POST, July 18, 2006, at C1; see also, e.g., Transcript, CNN American Morning, LEXIS Transcript 071705CN.V74 (July 17, 2006). Surely no observer—not even the Commissioners—could believe the President was making reference to Hezbollah’s “excretory activities.”


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