an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today's lead editorial in the New York Times expressed perhaps justified concern about the Supreme Court's grant of cert. in a case involving the FCC's claimed power to apply sanctions with regard to what the Times calls "fleeting explitives." (Although I don't know why the Court is eager to review a case that the Second Circuit so clearly decided correctly, I'm not sure I can count to five with regard to votes favoring the FCC. Anthony Kennedy and Antonin Scalia have both been very good on some free speech issues, and I see no particular reason to assume that they are catspaws for a censurous FCC. So maybe they took the case to send an even stronger message to the FCC censors. We'll find out next year.)
The editorial notes that one of the key cases in this sequence involved "the 2003 Golden Globes Awards show, which included the singer Bono’s uttering a single expletive as he accepted an award. " The paper apparently believes that it is simply unacceptable to note that the expletive in quesion was "fucking." "The F.C.C.’s rationale for its fleeting expletives policy is indeed thin," writes the Times. The FCC "clamed it was only trying to reflect community standards. But there is scant evidence that the public is up in arms about an occasional coarse word. The words the commission finds so offensive, and so in need of punishment, are the sort commonly heard in PG-rated movies and walking down the street. " True enough, but the Times apparently believes that the use of the word(s) in its own newspaper would be so shocking (unlike the case with, say, the Economist, The New York Review of Books, Harper's,, The Atlantic, The Times Literary Supplement, and the New Yorker, for starters) that it must continue to use such euphemisms. If I were the FCC lawyer, I would use the Times' own primness as evidence for the proposition that it is indeed beyond the pale to use even "an occasional coarse word," even when readers might be justifiably and non-pruriently curious about what kind of language so bestirs the FCC's sensibilities.
In an earlier post quite a while ago, dealing with the Times's unilluminating coverage of the Second Circuit case that the Supreme Court will review, I made this same basic point. That is why the "again" is in the title. It's a fucking shame that the Times doesn't realize that its editorial timidity only reinforces the FCC censors (who could, of course, satisfy any "vagueness" concerns about the regulations simply by printing a latter-day list of the "seven dirty words" that will earn a fine even if one of them is said by, say, a GI in Iraq after a buddy dies because of a terrorist attack). Posted
by Sandy Levinson [link]
My eyes! Oh my eyes!
Well, thank goodness for section 230 of the 1996 Telecom Act. At least they can't hold me liable. By the way, if any of you want to subpoena me to find out who wrote the above post, I confess that it was Sanford V. Levinson.
Back in 1995, the Times published this article, "Welcome to New York, Capital of Profanities" -- http://query.nytimes.com/gst/fullpage.html?res=990CE2DB1738F93AA25755C0A963958260&sec=&spon=&pagewanted=print -- about the commonness of fuck in New York speech. Curiously, "fuck" itself is never spelled out in the article.
As it happens, I've literally just finished reading the Arthur Schlesinger diaries (which are a lot of fun). He tells of Howell Raines, then the op-ed editor of the Times, refusing to publish a piece of Schlesinger's in which he noted that "It would be far worse if no one gave a damn about what [historians]said or did." Although Schlesinger protested this "asinine ban" of "damn," he did indeed change the sentence to "It would be far worse..."