“I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ’em.” That’s Cher, during the 2002 Billboard Music Awards, aired live on Fox. And here’s Nicole Richie in the 2003 Billboard Music Awards, also aired on Fox: “Why do they even call it ‘The Simple Life’? Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.”
Viewers complained to the Federal Communications Commission, and in 2006, the FCC issued Notices of Apparent Liability for these two broadcasts and others, in which it explained that the expletives at issue were indecent. This was a change of course for the FCC, which previously hadn’t gone after isolated expletives.
On Tuesday, the Supreme Court released its opinion in FCC v. Fox Television Stations, upholding this change of policy against an administrative-law challenge. Scalia wrote the opinion, and the quotes above, including the asterisks, are courtesy of him. (There’s a First Amendment challenge in there somewhere, but the Court didn’t reach it this time around.)
This is a potentially important administrative law case; Jonathan Adler has already blogged about the effects of the ruling on the Obama Administration’s regulatory initiatives, and Eugene has blogged about Scalia’s use of “glitteratae” and F-Word capitalization. I’ve decided to put up a series of posts giving the Deep Background of the case, from the original FCC policy and its litigation to the new FCC policy and its litigation, taking a detour through administrative law along the way to check out the standards for judging administrative agencies’ changes of course. This will help to evaluate the various opinions in the Fox Television case.
So we’ll begin in 1972, when the late, great George Carlin delivered his “Seven Words You Can Never Say on Television” routine. The live monologue appeared on his 1972 album Class Clown and, in revised form, on his 1973 album Occupation: Foole. (The 1973 version was recorded live at the now-defunct Circle Star Theater in San Carlos, California.) You can read a transcript of the routine here, and learn not only the seven words, but also the three auxiliary words! You can also watch similar versions of the monologue, say, here or here. I find it a bit over the top, but it definitely has funny bits, especially when you’re not just reading the transcript.