Tuesday, June 5, 2007

Court Rebuffs F.C.C. on Fines for Indecency

From The New York Times:
Reversing decades of a more lenient policy, the [FCC] had found that the mere utterance of certain words implied that sexual or excretory acts were carried out and therefore violated the indecency rules.

But the judges said vulgar words are just as often used out of frustration or excitement, and not to convey any broader obscene meaning. “In recent times even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced sexual or excretory organs or activities.”

Adopting an argument made by lawyers for NBC, the judges then cited examples in which Mr. Bush and Mr. Cheney had used the same language that would be penalized under the policy. Mr. Bush was caught on videotape last July using a common vulgarity that the commission finds objectionable in a conversation with Prime Minister Tony Blair of Britain. Three years ago, Mr. Cheney was widely reported to have muttered an angry obscene version of “get lost” to Senator Patrick Leahy on the floor of the United States Senate.

Ever the NYT. "Get lost," indeed.

In his dissent, Judge Pierre N. Leval defended the commission’s decision to toughen its indecency policy.

“In explanation of this relatively modest change of standard, the commission gave a sensible, although not necessarily compelling, reason,” he said.

“What we have is at most a difference of opinion between a court and an agency,” Judge Leval said. “Because of the deference courts must give to the reasoning of a duly authorized administrative agency in matters within the agency’s competence, a court’s disagreement with the commission on this question is of no consequence. The commission’s position is not irrational; it is not arbitrary and capricious.”

One might quote "The Dick" in response. But Leval is a judge, I am a lawyer, and I wouldn't do that.

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