SCOTUS gets one VERY VERY wrong

[drwex]

http://www.washingtonpost.com/wp-dyn/content/story/2009/04/28/ST2009042801819.html
By a 5-4 ruling (with a very special 'fuck you' to Justice Kennedy for joining Scalitomas in this abomination) the court has ruled that the FCC can in fact impose huge fines - up to $325,000 - for the use of one of Carlin's magic seven words on broadcast television. The majority held that the FCC's actions were "neither arbitrary nor capricious" despite the fact that the FCC had never imposed this level of regulation before, and despite the FCC admitting that it had in the past acted inconsistently.

If you've got a strong stomach you can read the whole thing here: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-582

This decision is wrong on several grounds. First, it inverts the very meaning of arbitrary and capricious. The FCC's rule-making was arbitrary, and its decision to enforce that rule was inconsistent - in effect capricious. I have no love for Fox, nor for Howard Stern, but it's pretty obvious that the FCC picked targets against which to enforce this rule based on some perceived notion of popularity. Other passing epithets have gone unchallenged. What else could "arbitrary" mean? I can't glean that from this ruling.

Second, the statement "the F-Word's power to insult and offend derives from its sexual meaning" shows a grotesque ignorance of how people use language. I can assure you that children, including mine, use 'fuck' to shock and offend while having little or no concept of its sexual meaning. I can also say with a high degree of confidence that people who say "fuck this" or "fuck off" have not stopped to consider the idea of sexual intercourse with the person, object or situation that is their target. And, really, how does sex enter into the common use of injections such as "abso-fucking-lutely". It's an emphatic, long ago stripped of most of its sexual connotation.

Argh gargling marge, what the fuck is wrong with those people?

Comments

[feste-sylvain.livejournal.com]

As I mentioned in my post on the decision, even Justice Thomas is recognizing that the entire notion is rapidly becoming outdated.

But it's worth reading page 26 of the decision: Justice Scalia (most likely at Chief Justice Roberts's prompting) explains that this decision is solely on the meaning of the FCC's new rules: whether these rules authorized this action. They are not ruling on whether these rules are Constitutional:

The Second Circuit did not definitively rule on the constitutionality of the Commission’s orders, but respondents nonetheless ask us to decide their validity under the First Amendment. This Court, however, is one of final review, “not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005). It is conceivable that the Commission’s orders may cause some broadcasters to avoid certain language that is beyond the Commission’s reach under the Constitution. Whether that is so, and, if so, whether it is uncon­stitutional, will be determined soon enough, perhaps in this very case. Meanwhile, any chilled references to excre­tory and sexual material “surely lie at the periphery of First Amendment concern,” Pacifica, 438 U. S., at 743 (plurality opinion of STEVENS, J.). We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.

So it's a bad decision, but not the last word on the underlying issue by any stretch.

[gatopreto.livejournal.com]

Fuck that shit!

[taura-g.livejournal.com]

I will concur with feste_sylvain on this that it is somewhat comforting that this is not the last day in court for this.

That being said...WTF? I've been trying to work this logic through in my head all day and all I am coming up with is...Are they really serious? No, really?

[srl.livejournal.com]

As of right now, NPR is reporting that Souter's announced his resignation effective at the end of the current term.

[vibrantabyss.livejournal.com]

Very belatedly (yay slow background processing?):

If you seek, eh, the FCC I hear they are down in Washington doing dumb things.

Let's *please* get that on the airwaves since they clearly cannot fine for it.