The U.S. Supreme Court has the chance to overturn one of the sillier policies adopted during the Bush administration: the Federal Communications Commission’s decision to punish any use of a profanity over television or radio. On Jan. 10, 2012, the Court will hear oral arguments in FCC v. Fox Television Stations Inc., and the issue is whether it violates the First Amendment for the government to punish fleeting expletives over television and radio. The Court should recognize that such words often are a unique way of powerfully communicating an idea and that no one is hurt by hearing a profanity.
This, of course, is not the first time the Court has dealt with so-called “indecent speech” under the First Amendment. In Cohen v. California, in 1971, the Court held that a boy could not be punished for being in a courtroom with a jacket on his arm that had the words, “Fuck the Draft.” Justice John Marshall Harlan II wrote for the Court and said we “cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process.” But seven years later, in FCC v. Pacifica Foundation, the Court ruled that the Federal Communications Commission could punish profane and indecent language over the television and radio. The case involved a radio station that played the George Carlin monologue on the “seven dirty words.” The Court emphasized that the broadcast media is uniquely intrusive into the home and accessible to children.
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