Unlike Cher, Justice Kennedy gags on the ‘lyrical’ ‘F-word’


The Supreme Court this week punted on whether the Federal Communications Commission’s policy of punishing fleeting expletives on prime-time TV violated the 1st Amendment. Instead, deciding the case narrowly, it said that the two TV networks that appealed sanctions for spontaneous utterances of the “F-word” hadn’t been warned in advance that that was a no-no.

The non-decision was a disappointment for court junkies who were waiting to see Cher and “a person named Nicole Richie” (as Justice Anthony M. Kennedy referred to the faux celebrity) enshrined in a landmark 1st Amendment decision, joining Larry Flynt , the gay-bashing Westboro Baptist Church and Paul Robert Cohen.

Cohen entered the legal history books in 1971 when the Supreme Court overturned his disturbance-of-the-peace conviction for showing up at the Los Angeles County Courthouse on April 26, 1968, wearing a jacket bearing the words “F*** the Draft.”


Writing for the court, Justice John Marshall Harlan -- not, as you might guess, Justice William O. Douglas -- held that O’Brien was exercising his right to protest the Vietnam War. As for the F-word, Harlan said that “while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric.” (This year Harlan’s law clerk at the time, Thomas Krattenmaker, claimed credit for that phrase.)

Fast forward to 2012, and the justices are explaining why the FCC acted illegally in sanctioning Fox TV for “fleeting expletives” uttered by Cher and Nicole Richie. In case you forgot what they said and where, here’s Kennedy’s summary:

“First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: ‘I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.’ Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: ‘Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.’ ”

What’s interesting about this passage is that Kennedy didn’t spell out the F-word. (Neither did I in the reference above.) Yet in the Cohen case, decided four decades ago, the court did use the whole word. Are justices more prudish today than they were in 1971? If so, does that foretell trouble for the next network that allows the F-bomb to be dropped on the air?


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