PUNISHING "BAD WORDS" : MORALITY, JUDGMENT AND THE FIRST AMENDMENT

OESTERHOUDT STRIKES

I like May and June because they are the months in which the Supreme Court issues its most contentious opinions. This not only invigorates my critical spirit; it also gives me plentiful fodder for satire. After all, with a bitter conservative majority on the bench determined to buck Democratic control in Washington, I expect especially rancorous and divisive opinions this year. I have often written that I have lost much faith in the Supreme Court. In recent years, it appears to me that the Justices merely translate their own political beliefs into “opinion-speak,” then try to fool their readers into thinking that they actually made principled decisions. Although I have greater contempt for conservative justices than liberal ones, both sides are guilty. Doctrines that avoid questions altogether—like standing, political question and “constitutional avoidance”—typically arise when the prevailing side uses it to win the case. For example, Justice Scalia may extol “judicial restraint” by “deciding only the statutory question” if the statutory question will lead to conservative victory. But when conservative victory depends on “ignoring the statutory question” and interpreting the Constitution, all his “restraint” rhetoric goes out the window. At the same time, the liberals will argue “restraint” when the conservatives interpret the Constitution, and they will interpret the Constitution when the conservatives argue “restraint.” It is pitifully predictable. It is pitifully political. In short, the Supreme Court has become expedient. They merely dress up their prejudices and subjective inclinations in perplexing jargon. But prejudices and subjective inclinations they remain.

I find this disheartening because I truly believe that the Constitution stands for something greater than ourselves. When justices infuse their own foibles and political judgments into questions involving lofty principles such as the “freedom of speech” or “Equal Protection,” they forget what the Constitution really means. In my view, “constitution” is a good word. It brings to mind abstract freedom, liberty, justice, rights, humanity, goodness and compassion. I think most people share that impression. Even R&B King James Brown echoed this “positive” impression about the Constitution in his 1971 recording “Get Up, Get Into, Get Involved” when he sang: “We don’t need Revolution/ We Got to have Constitution/ We don’t need sorry fools/ We got to have better schools.” Revolution of the Mind Album (1971). Mr. Brown thought that the Constitution represented America’s great solution to burning social problems. In his view, we did not need revolution because the Constitution already provided us all the liberty and justice we need. And he equated the Constitution with “better schools.” Schools are good. In other words, the Constitution, too, means something good. It is so good that we do not need to revolt against our government. In the popular view, the Constitution is good. It stands for all the great ideals that Americans think represent America: justice, equality, freedom, etc., etc.

At least, this is what people believe. If they went to law school and read some Supreme Court cases, they would discover the sad truth that our Constitution does not always lead to justice. While the Constitution theoretically offers America a path to justice, more often it operates simply as a “governing document” that provides for “basic peace, security and stable commerce.” True, the Constitution guarantees individual rights against governmental interference. But rights are hazardous. If the people have too many rights, the government could not get anything done. Recognizing this, the Supreme Court has done much to curtail the “majestic generalities” contained in constitutional language. For example, while the Fourteenth Amendment, § 1 reads: “No State shall…deny to any person within its jurisdiction the equal protection of the laws,” this does not literally mean that States must treat everyone equally. Indeed, the Supreme Court has effectively eviscerated this hopeful-sounding language by allowing States and the Federal government to make whatever legal distinctions they wish, provided they can show that the distinction “rationally relates” to a “permissible State interest.” See, e.g., Railroad Retirement Board v. Fritz, 449 U.S. 166, 174-176 (1980). Sometimes the State must show greater justifications. But the point is that constitutional language does not mean exactly what it says, no matter how nice it looks. The Supreme Court limits it until the original language becomes a virtual mockery unto itself. Nonetheless, most Americans do not know about Supreme Court decisions. They cling to the idea that the Constitution is good. They continue to think it stands for liberty and justice.

Consider the First Amendment. I deeply care about the First Amendment, especially its protection for “free speech” (“Congress shall make no law…abridging the freedom of speech, or of the press…). U.S. Const. Amd. I. The First Amendment has assumed mythical status in the American value system. After all, what would “freedom” mean if we could not speak out on issues without fear of governmental sanction? How could we claim “liberty” about anything if our own government could punish us for speaking our minds? What would individuality mean if the State could punish individual expression? To my mind, “freedom of speech” is my core liberty. Without it, I could not express my own ideas. I could not challenge, criticize, satirize or lampoon my government. Perhaps I could, but I may go to prison for it. Yet that would be quintessentially “un-American,” wouldn’t it? After all, Americans think that they have the right to criticize the government and to speak their minds on virtually any issue. That’s what makes us “free.” According to this common understanding, the First Amendment stands for much more than the freedom to say things. It stands also for the freedom to think for ourselves and to have a conscience, even if our thoughts cause tension with others. To my mind, the First Amendment is a glowing beacon of liberty in otherwise cold and remorseless legal world. It is my shelter to be who I am, and to say what I think, even if it is not “appropriate,” “decent,” “moral,” “just,” or “appetizing.” That is breathtaking liberty. And that is why people think that the Constitution is “good.” After all, if it stands for such wonderful rights, how could it be bad?

But the First Amendment has not escaped the Supreme Court’s pruning shears. While the Court sometimes strengthens the First Amendment and sings praises to the fundamental liberty it guarantees (see, e.g, New York Times v. Sullivan, 376 U.S. 254 (1964)), more often it steps in to “put a sock” in speakers’ mouths. Especially in recent decades, true “freedom of speech” has been whittled down into an illusory guarantee, in much the same way the “equality principle” housed in the Fourteenth Amendment has been qualified into oblivion. How could this happen? How could the bastion of our rights as individual citizens be interpreted away like this? Easily: Because the Supreme Court is a political institution. Justices in our times do not think about liberty in the abstract. They think about how they can disguise political judgment as constitutional law. That approach has savaged our constitutional liberties. Not only can we not speak as freely as we could in times past, but we are also not as secure in our persons, property and dignity as we once were. It is much easier for the police to wring confessions and search homes today than it was in 1970. Through an endless series of fact-based exceptions, qualifications, explanations and limitations, the Supreme Court has stripped our liberties, rendering them technical shibboleths with no romantic appeal at all. Our “freedom of speech” is no exception to this trend.

When the Supreme Court takes a wrecking ball to the First Amendment, I get upset. When justices impinge upon our liberty to speak by disguising their own moral and political prejudices in fancy legalese, my blood boils. Recently, the Court broke out the demolition equipment again in the case F.C.C. v. Fox Television Stations, Inc., 556 U.S. ___ (2009). Here, the Court revisited the “indecency in broadcasting debate” that began with the classic case F.C.C. v. Pacifica Foundation, 438 U.S. 726 (1978). In essence, Pacifica held—without precedent—that “indecent, nonobscene” language in broadcasting could be banned because it had a “unique power to offend,” it was “uniquely pervasive” and it was “uniquely accessible to children.” Even though there was no constitutional basis to ban such “nonobscene” speech outright, the Court created a special “category” for so-called “indecent speech” that might “injure a listener who does not want to hear it” because it had “lower value” than other protected speech. In the usual case, the First Amendment’s free speech guarantee prohibits government from regulating speech based merely on its “content” or “message.” Rather, the government may only regulate speech based on content if it fits a “traditionally proscribable category,” such as “fighting words,” “obscenity,” “incitement to riot,” or “libel.” In Pacifica, the Court admitted that the broadcast at issue was not obscene—it merely “deliberately and repeatedly” referenced “sexual and excretory functions and organs.” Nonetheless, based on “moral considerations” and “context,” it decided that government could fine a broadcaster for crossing the “decency line.” After all, according to the Court, such language has “low value.” In essence, the Court made a moral judgment. It concluded that certain otherwise constitutionally protected speech has “lower value” than other speech. Because the Court found the broadcast “patently offensive” on moral grounds, it fined the broadcaster.

Liberty took a significant hit in Pacifica. In the ensuing decades, the Federal Communications Commission began policing broadcasts for “indecent speech” that could potentially “offend an unwilling listener” with “sexual or excretory” language. Over the years, the Commission developed a torturous, morality-laden common law by which it analyzed whether particular words were “patently offensive,” looking to such details as whether the “words were deliberate or repeated,” whether they “literally referred to sexual or excretory function” and whether “they merely were fleeting, expletive uses” that would not offend as many people. In other words, it would be “indecent” to broadcast: “I need to take a shit” because that “literally refers to excretory function, but it would not be indecent to broadcast: “Oh shit! I’m on fire!” because that is merely a fleeting, expletive “non-literal” use of the word. Under this labyrinthine common law, referring to real excrement was “indecent,” “disgusting” and “offensive.” But merely making an “exclamation” was not.

In the Fox case, Justice Scalia tightened the “indecency” noose even further. In a predictable 5-4 decision (conservatives Roberts, Scalia, Thomas, Alito and Kennedy v. liberals Stevens, Souter, Breyer and Ginsburg), the Court concluded that the Commission could fine Fox for broadcasting the words “fuck” and “shit” during the Billboard Music Awards in 2003. Cher uttered her bad word when she lashed out at her critics: “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. Fuck ‘em.” See slip opinion at p. 6. Paris Hilton and Nicole Richie uttered their bad words with a joke about “cleaning cow shit from a Prada bag; it’s not that fucking simple.” Id. The Commission said that Fox violated its rules prohibiting “indecent language” on the airwaves. See, e.g., 18 U.S.C. § 1464. In the Commission’s view, even “fleeting, non-literal” “bad words” could be “patently offensive,” despite a prior rule to the contrary. The Board reasoned that the word “fuck” was always offensive “because that word has an inherently sexual connotation” and “[it] is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.” Id. at p. 7. Why exactly is “fuck” so offensive? According to the Commission: “Because it invariably evokes a coarse sexual image.” Id. And why was Cher’s “fuck ‘em” comment so offensive? According to the Commission: “Because she metaphorically suggested a sexual act as a means of expressing hostility to her critics.” Id. Justice Scalia implicitly agreed with this linguistic analysis, adopting the Commission’s reasoning: “An expletive’s power to offend derives from its sexual or excretory meaning.” Id. at p. 8.

Justice Scalia proceeded to expressly reject a constitutional challenge to the Commission’s action, choosing instead to review the case as “an administrative matter” under the Administrative Procedure Act, 5 U.S.C. § 551. See slip opinion at pp. 9-12. Under that deferential standard, the broadcasters were doomed to fail. The Commission merely had to show that its reasons for adopting the new “no expletive” policy were not “arbitrary or capricious.” Id. at p. 9. To meet that standard, the Commission simply had to say that it explained its reasons and believed them. Id. at p. 11. Justice Scalia even refused to apply a somewhat “heightened review” to the Commission’s action because its “policy change” did not “contradict any previous factual findings,” nor did the old policy engender “serious reliance interests.” Id. at pp. 11-12. After all, this was merely a case involving “bad words.” There was no need to bring up the First Amendment.

This reasoning outraged me because it so dismissively rejected the constitutional implications inherent in the Commission’s action. In my view, no matter how offensive a word may be, it is still “speech,” and if government has a problem with the content, it must proffer a very compelling justification to suppress it. See United States v. O’Brien, 391 U.S. 367 (1968). Worse, the Court implicitly adopted the Commission’s rhetoric that a word’s “power to offend” flows from “sexual or excretory meaning.” This is not constitutional law, nor even detached legal analysis. This is pure value judgment. According to this logic, any word that has a “sexual or excretory meaning” has “the power to offend.” It follows, then, that not just “fuck” or “shit” would be “offensive,” but also “coitus,” “intercourse,” “copulation,” “defecate” or “poopie.” All those words have “sexual or excretory meaning,” and thus—according to this preposterous analysis— “the power to offend.” What does this moral oversensitivity have to do with the liberty to speak and use language? To me, this is Puritanism masquerading as constitutional analysis. And value-laden Puritanism is no basis upon which to make decisions that impact every American’s rights under the First Amendment.

Under the Court’s reasoning, Cher could have said: “Intercourse my critics” and the Court would still have approved a fine for “indecent speech.” Nicole Richie could have said: “Have you ever tried to clean cow dung from a Prada bag? It’s not so copulatingly simple” and she still would have used words that “have the power to offend” because they have “sexual and excretory meaning.” Further, the Court agreed that the phrase “Fuck ‘em” was “bad” and “offensive” because it “metaphorically suggested a sexual act as means of expressing hostility to [Cher’s] critics.” It also said that the word “fuck” “invariably evokes a coarse sexual image.” This is pure rubbish. Anyone with a rudimentary understanding of English slang knows that the word “fuck” is immensely versatile. It is not always sexual, nor does it always “evoke a sexual act or image.” Dictionary.com provides the following definition: “Fuck (verb used with object): 2. slang to treat unfairly or harshly.” Cher used the verb in exactly this sense. She expressed harsh contempt for her critics. It had nothing to do with sex. In that light, the Commission’s linguistic reasoning is demonstrably false and exaggerated.

I find these matters critically important, even if they involve only “vulgar speech.” Although the Commission identified “fuck” as a “bad word” because it was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” I defend language for its own sake. I like knowing that I can use whatever word I please to describe my own thoughts and impressions. Words are not evil in themselves, nor should we ban them because they engender moral revulsion in faint hearts. If we entrust governmental agents to screen out certain words based on their own, regressive moral sensibilities, we cede our individual liberty to their judgments. And if the Commission and the Supreme Court represent the “standard” for “decency,” we can expect to cede a great deal more.

I often criticize dominant morality because it is not based in reason. Rather, morality derives from age-old intuitions concerning a general societal belief that something is “disgusting,” “revolting,” and thus “blameworthy” and “inappropriate.” Yet the Constitution and individual rights should be based in reason, not intuition. The Constitution is not a moral treatise. But the Fox case, as well as the whole “indecency doctrine” in general, make morality the entire basis for constitutional decisionmaking. Reason did not influence the Commission’s rationale for banning “offensive” speech. Rather, intuitive moral revulsion influenced the rationale. Some overly moral tightass got uncomfortable when he heard the word “shit,” then prevailed upon his fellow overly moral tightass friends in power to ban the word. The Supreme Court majority in Fox agreed in principle with these overly moral tightasses, even if it disguised its moral approval with vacuous legal nonsense about “standards of review” and the “Administrative Procedure Act.” These legal mechanisms represent a mere technical subterfuge for brazen moralizing. And Justice Scalia’s refusal to address the constitutional dimension to “indecency bans” reflects his own moral belief that “indecent speech” is “bad” because it is “disgusting.” Again, this is not constitutional analysis. It is value judgment.

Reason should guide the United States Supreme Court, not morality. In many cases, reason and morality can coexist. But when it comes to constitutional liberty, morality must give way to the abstract guarantees to which citizens are entitled. Morality is intensely subjective. It plays upon emotion and passion. Indeed, any belief system that draws upon disgust necessarily disparages reason. As such, any so-called “constitutional jurist” must handle morality with the greatest care when addressing constitutional questions. Morality has the power to introduce concerns that have no place in the pantheon of constitutional liberty. The First Amendment contains positive abstractions that favor the individual and his expression. Morality, on the other hand, provides a basis to judge other individuals and their expression “revolting.” A prudent jurist will recognize that tension and rule for abstraction over morality, even if he finds the individual’s expression “disgusting.” In the Fox case, the Court should have addressed the constitutional dimension to the Commission’s morally charged rule-making. When morality treads too harshly on core constitutional guarantees, a conscientious jurist must address the constitutional issues. The fact that the Court here did not even broach the First Amendment bespeaks its modern-day malaise—and even cowardice.

If we truly are a “Nation of laws,” our Supreme Court would disapprove the “indecency doctrine.” Law dictates that only certain “speech categories” may be banned. “Indecency” is not one of them. The Court allowed morality to tarnish its respect for liberty. Pacifica was a mistake. Fox perpetuates its error. Until the Court recognizes that liberty must win over morality, we can expect more absurdities in the future, as well as less freedom to speak.

And I don’t give a damn about the children. Parents should start paying attention to what their children are watching. I cannot bear the fashionable rhetoric that justifies reducing constitutional liberties to protect some fanciful child. Our Constitution is timeless. Our children are not. I would rather have my liberty than overprotected children who will wind up speaking vulgarities anyway. It is a harsh world. “Bad words” will reach them some day, somehow.