What the Bleep?

In my latest FindLaw column, I discuss the Supreme Court's recent decision in FCC v. Fox Television Stations, Inc., which upholds the FCC's "fleeting expletives" rule against an administrative law challenge. Among other things, I call attention to the peculiarity that Justice Scalia's opinion for the Court uses the terms "S-Word" and "F-Word" in place of "shit" and "fuck" respectively. Here I'd like to explore another point about profanity that I don't address in the column.

In challenging the FCC policy, Fox and the other broadcast tv networks argued, among other things, that profanity (at least of the fleeting variety) is so commonplace, that it's futile to try to protect the sensibilities of children by keeping it off prime-time tv. The Second Circuit had accepted this argument, reasoning that today's youth "likely hear this language far more often from other sources than they did in the 1970's when the Commission first began sanctioning indecent speech." But Justice Scalia purported to turn this argument around. He wrote:

The Commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children.

On its face, this makes little sense. The point urged by the broadcasters and accepted by the Second Circuit was that once kids are old enough to operate a tv or an internet-accessible computer on their own, they will be exposed to profanity, whether or not their parents approve.

I believe, however, that Justice Scalia was making a somewhat different point. He was not suggesting that it is possible for parents to shield kids from the words "shit" and "fuck." Rather, he was arguing, as he says expressly elsewhere in his opinion, that the problem with carrying these expletives on prime-time tv is that doing so conveys a message to children that their use is "normal and appropriate."

I'll grant that there is something to that point, but I don't think it goes nearly as far as Justice Scalia believes, precisely because of the "bleeping" technology that the FCC found crucial. A child who sees and hears Bono say "fucking" on TV gets exactly the same message as a child who sees Bono mouth the word "fucking" while hearing a bleep. The child learns that the people who run tv have a rule requiring that "fuck" and its variants must be bleeped out, even while also learning that people say the word anyway.

The near-pointlessness of bleeping is well illustrated by the closely related phenomenon of substituting a similar-sounding-but-not-profane word for the profanity, as in a 1989 SNL sketch that substituted "funk" for "fuck," or, more profoundly, by Norman Mailer's magnificent 1948 novel of WWII Pacific combat, The Naked and the Dead, in which, at the insistence of his publisher, Mailer had to substitute "fuggin" for "fucking" throughout the book. No one who knows the actual word "fuck" is either fooled or protected by such substitutions. So what the fug is their point?

Posted by Mike Dorf