Published: May 2, 2009
LAST Tuesday, the Supreme Court upheld the Federal Communications Commission’s crackdown on the use of dirty words on the airwaves.
That the justices managed to do this without actually uttering either of the words at issue — one refers to a sexual act, the other to a bodily function — exemplifies both the court’s tact and its lack of connection with contemporary English usage.
The case, Federal Communications Commission v. Fox Television Stations, was a test of the commission’s zero-tolerance policy toward isolated curses, or “fleeting expletives,” as the F.C.C. calls them. The commission put in place the so-called Bono Rule, named for the U2 singer (and contributing columnist for this page) who used an expletive during an NBC broadcast of the Golden Globe Awards in 2003. That same year, Fox Television broadcast a routine by Paris Hilton and Nicole Richie in which both the vulgarities considered by the court were used.
In response to these incidents, in which children of tender years were doubtless exposed to salty language, the F.C.C. decided that prime-time TV must be sodium-free, as it were. Departing from a 30-year policy of going after only repetitive usage of swear words, the Bono Rule gave the F.C.C. the power to punish a single utterance of a vulgarity.
In 2007, the United States Court of Appeals for the Second Circuit, in Manhattan, struck down the Bono Rule, holding that it had no rational basis. But the Supreme Court disagreed. Writing for the majority last week, Justice Antonin Scalia stated that it was “entirely rational” for the F.C.C. to conclude, as it did, that one particular curse “invariably invokes a coarse sexual image.”
Does it? The evidence is mixed. Jesse Sheidlower, editor at large of the Oxford English Dictionary and the author of a book on swearing, described the F.C.C.’s argument as “rubbish.” Although the word in question originally referred to a sexual act, Mr. Sheidlower argued, it has now taken on an independent “emotional” sense. The nonsexual use of the word can be seen in countless contemporary examples, as when Vice President Dick Cheney used it in 2004 to recommend that Senator Patrick Leahy do something that is, strictly speaking, anatomically impossible.
The counterargument is that the very power of the word as a nonliteral intensifier derives from its underlying sexual meaning. Or, as Ruth Wajnryb, an Australian linguist, explained in her book “Expletive Deleted,” the word is taboo “because of its referential function.”
Ultimately, the Fox Television case raises a dichotomy well known to linguists: descriptivism versus prescriptivism — that is, whether to yield to the reality of how language is actually used (descriptivism) or fight to maintain objective standards (prescriptivism). Descriptivists happily accept “impact” as a verb and “my bad” as a form of apology; prescriptivists resist such innovations.
At oral argument, Fox’s lawyer urged a descriptivist approach, arguing that the common slang term for sexual intercourse is no longer indecent because Americans “are significantly more tolerant” of the word than they were when the high court first upheld the F.C.C.’s multiple-expletive rule in a 1978 case involving the comedian George Carlin’s “filthy words” monologue (F.C.C. v. Pacifica Foundation). After all, we live in an age, for better or worse, when children are exposed to profanity on cable and satellite TV and the Internet. Justice Scalia, however, insisted that the proliferation of swear words made the prescriptivist case all the more urgent: parents should be able to consider broadcast TV a “relatively safe haven” for children.
As much as one sympathizes with language prescriptivism in general (please, let us all resist “c u l8r”), censorship is necessarily a descriptivist endeavor. Indecency laws are tied to evolving community standards. In 1623, the English Parliament passed legislation to prohibit “profane swearing and cursing.” Under that law, people could be fined for uttering oaths like “upon my life” or “on my troth.” In the Victorian era, the word “bull” was considered too strong for mixed company; instead, one referred to “gentlemen cows.” Times change, notwithstanding the fervent wishes of prescriptivists to keep dirty words dirty.
The F.C.C. may have won this round, but the bluenoses can’t declare victory just yet. The next test of the F.C.C.’s regime will come soon enough, as the Supreme Court has agreed to review the commission’s $550,000 fine against CBS for a nine-sixteenths-of-a-second exposure of Janet Jackson’s breast during the 2004 Super Bowl halftime show. Perhaps the F.C.C.’s disproportionate response to that incident will be recognized for what it was: a regulatory malfunction.
Adam Freedman, a lawyer, is the author of “The Party of the First Part: The Curious World of Legalese.”
