Defusing the F-Bomb 

Do we really want the courts to take all the fun out of swearing?

As Mr. Emanuel says, "I swear a lot." He also yells a lot, and in his sentences his favorite expletive can serve as subject, verb or adjective. . . . New York Times, November 6

"If you were his size, went to Sarah Lawrence, and used to study ballet," said a friend of Rahm Emanuel's, "you'd need to swear like that too." But it's all good. Emanuel's ace in the hole as Barack Obama's chief of staff will be his gift for making strong men buckle at the knees simply by opening his mouth. And Emanuel has friends on the Supreme Court who I believe intend to protect that gift.

As America went to the polls last Tuesday, the court convened to discuss the future of obscenity on our airwaves. What everyone knows about obscenity, though it doesn't fit neatly into a legal brief, is that when it isn't forbidden it isn't obscenity. For instance, we attend a David Mamet play and hear the characters swear like crazy. But do they hear each other swear? I think not. At any rate, the court's prissy discussion of the subject sent a strong message that the grandmasters of expletivism, Emanuel for one, will continue to be something special.

Gregory Garre, solicitor general of the United States, told the court: "Well, certainly the FCC's action in this case focuses on the use of the F-word and the S-word, and I think everyone acknowledges that a word like the F-word is one of the most graphic, explicit, and vulgar words in the English language for sexual activity."

The Federal Communications Commission defines "indecent speech" as "language or material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs."

Justice John Paul Stevens to Garre: "Isn't it true that that is a word that often is used with—with no reference whatsoever to the—the sexual connotation?"

Garre: "It certainly can be used in a nonliteral way. It can be used in a metaphorical way."

However, Garre went on, "What we would say is that it can qualify as indecent under the—under the commission's definition, because even the nonliteral use of a word like the F-word, because of the core meaning of that word as one of the most vulgar, graphic, and explicit words for sexual activity in the English language, it inevitably conjures up a core sexual image."

"Which is indeed," put in Justice Antonin Scalia, "why it's used."

"Which is indeed why it's used as an intensifier or as an insult," said Garre.

Does Scalia truly think that some "core sexual image" will flash through the mind of the CEO from General Motors when Emanuel tells him, "Fuck you, schmuck, you'll wait in fucking line to see the president just like everyone else"? Well, if he does, that's between the justice and his therapist—or perhaps his priest. But all Rahm Emanuel needs to take from this exchange is that Scalia seems to have no intention of allowing his favorite forbidden words to become any less forbidden. Which they must not become—not if Emanuel, by uttering them, is to succeed in stunning the next president's adversaries into submission.

The FCC got its feet wet as an enforcer in 1975, when it reprimanded the Pacifica Foundation for airing George Carlin's infamous "Filthy Words" monologue one afternoon on a Pacifica station in New York. Carlin riffed for 12 minutes on the seven words "you couldn't say on the public airwaves," saying them repeatedly. These were shit, piss, fuck, cunt, cocksucker, motherfucker, and tits. Carlin also marveled that bitch, bastard, hell, and damn were now apparently OK.

In ruling against Pacifica, the FCC established its "sexual or excretory activities and organs" standard of "patently offensive" language. Pacifica challenged the ruling, but in the end the Supreme Court ruled five to four that the FCC had the authority to sanction broadcasters for indecent speech. It was, however, a narrow authority: the court made it clear that its ruling "does not speak to cases involving the isolated use of a potentially offensive word in the course of a radio broadcast, as distinguished from the verbal shock treatment administered by [Carlin]."

For a long time, that was that. But in recent years the FCC, concerned—and aren't we all?—about creeping indecency on the public airwaves, decided to crack down on episodic transgressors. When Bono was awarded a Golden Globe in 2003 and said on live TV, "This is really, really, fucking brilliant," the FCC decided to make new policy. It declared "the F-word" and all its variations inherently sexual. And profane to boot, for the FCC, wrenching it away from blasphemy, asserted a new, more expansive definition of profanity.

Now the FCC surveyed the horizon. At the 2002 Billboard Music Awards, Cher had said, "People have been telling me I'm on the way out every year, right? So fuck 'em." And at the same awards ceremony a year later, Nicole Richie, a presenter, had remarked (departing from her prepared script), "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Though it didn't attempt to penalize Fox, which carried the Billboard ceremonies, the FCC ruled that both these utterances had been indecent and profane. Shit, the FCC took the opportunity to make clear, was like fuck—presumptively indecent and profane. Fox, joined by various other broadcasters, challenged the new standards in court, and in June 2007 the Second Circuit of the U.S. Court of Appeals issued its opinion.

The three-judge appellate panel ruled that the FCC was off base from the get-go: it had "made a 180-degree turn regarding its treatment of 'fleeting expletives' without providing a reasoned explanation justifying the about-face." By deciding the case on this threshold issue, the court didn't have to go on and say whether the about-face was constitutional, legal, reasonable, or made any sense at all.

But the court said all that anyway. The majority opinion said in so many words that no reasoned explanation was possible because the FCC's new position simply wasn't reasonable. For instance, the FCC claimed it was "difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions." The court: "This defies any commonsense understanding of these words.... Bono's exclamation that his victory at the Golden Globe Awards was 'really, really fucking brilliant' is a prime example of a non-literal use of the 'F-word' that has no sexual connotation."

The court noted that even "top leaders of our government" had used forbidden expletives in ways "that no reasonable person would believe referenced 'sexual or excretory organs or activities.'" The examples cited: George W. Bush telling Tony Blair that the UN needed to "get Syria to get Hezbollah to stop doing this shit"; Dick Cheney telling Senator Patrick Leahy "Fuck yourself" on the Senate floor.

And for good measure, the appellate court observed that while it hadn't decided the case on constitutional grounds, if it had the FCC almost certainly would have lost.

Certain "progressives" and "libertarians" applauded the Second Circuit decision, but for partisans of a robust, fully stocked English language, it was a time to worry. To decouple a word like fuck from the sexual roots that made it verboten was to push it into the currents of common usage. And when forbidden words go mainstream, a Rahm Emanuel becomes just another noisy short guy.

Even Appellate Judge Pierre Leval, dissenting from the majority, offered little comfort. Leval thought the FCC had made "a sensible, although not necessarily compelling," case for its new policy, and he gave it points for struggling "over the years to reconcile conflicting values." But he rhapsodized over the many nonsexual usages of what he called the F-word. "A student who gets a disappointing grade on a test, a cook who burns the roast, or a driver who returns to his parked car to find a parking ticket on the windshield, might holler out the F-word.... The word is also sometimes used to express delight."

And though he allowed that use of the F-word should be circumscribed to protect the innocence of children, he said the S-word was a different story. "For children," he observed, "excrement is a main preoccupation of their early years."

In short, the three appellate judges showed little if any concern for the need of the language we all speak to retain a small arsenal of words that are always incorrect.

Fortunately, the FCC didn't fold its tent. It took the matter to the Supreme Court, and the oral arguments last Tuesday found the Court pondering the F-word and the S-word like physicians of old contemplating the king's bowels.

"Why do you think the F-word has shocking value or emphasis or force?" asked Chief Justice John Roberts.

"The same reason the S-word does," replied Carter Phillips, an attorney for the broadcasters. "It's because in some circles it is inappropriate."

"Because it is associated with sexual or excretory activity," Roberts told him. "That's what gives it its—its force."

"There is no empirical support for that," said Phillips.

"Of course there is," said Justice Scalia.

"People use all kinds of euphemisms for it, and nobody blinks about it," Phillips protested. But that's what Roberts and Scalia had been trying to tell him: Fuck is not about what it means; it's about what it is.

A few minutes later Phillips tried to make a point about the FCC's inconsistent enforcement—allowing obscenities to be aired in a war movie, for instance, but not at the Golden Globes. But Roberts replied, "I mean, it's one thing to use the word in, say, Saving Private Ryan, when your arm gets blown off. It's another thing to do it when you are standing up at an awards ceremony."

Phillips sputtered, "You can't seriously believe that the average nine-year-old, first of all, who is probably more horrified by the arm being blown off... "

It was the old liberal saw about how blood and gore and mayhem and wholesale slaughter are OK on TV but anything sexual is intolerable. Roberts ignored it.

Just before the session ended, a mischievous question popped into the head of Justice Stevens. He asked solicitor general Garre, "Do you think the use of the word dung—d-u-n-g—would be indecent?"

Yes, said Garre, "under the subject matter definition, but it probably wouldn't be patently offensive under community standards for broadcasting."

Alas, Stevens didn't follow up. It's easy to imagine how the conversation might have continued. Then what about poop? And caca? And the hifalutin feces? A line of inquiry opened to ridicule the incoherence of the FCC's position would in the end celebrate the richness of our language, the gradations, nuances, and precisely calibrated payloads it offers our virtuosos of oral shock and awe.

Or as Rahm Emanuel just said to the Iranian ambassador ...v

Care to comment? Find this column at chicagoreader.com. And for more on the media, see Michael Miner's blog, News Bites.

Rahm Emanuel

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