Home / General / The Court and Indecently Arbitrary Violations of Free Speech

The Court and Indecently Arbitrary Violations of Free Speech


Dahlia Lithwick’s piece on the oral arguments on the latest round of the FCC “fleeting expletives” case that the Supreme Court kicked back to the circuit court 3 years ago is excellent. The two most salient points:

  • Based on FCC v. Fox and today’s oral argument, this looks like it’s going to be another example of Liptak’s recent point about how the alleged commitment of the Court’s conservatives to free speech (with the possible exception in this case of Thomas) is greatly overstated.
  • Rather than end the silliness, the Obama administration has “defended the Bush indecency policy with great zeal.”
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  • c u n d gulag

    I’m just glad that during the hearings, Justice Scalia didn’t pull up his robes and show everyone his ass.

    He IS pretty expressive, you know.

    http://www.flickr.com/photos/[email protected]/3490986159/

    And “Vaffanculo” backattcha, Tony!
    Too bad your Mama didn’t teach you no respect…

  • Tom M

    Why does the Obama administration so eagerly defend the GwB policies? Is this the Liberty lawyer effect? Did GwB soak the DoJ with ideological lawyers that absurd stances become the norm?
    If we must have a Republican administration, let’s elect one and be open about policy preferences.

    • R Johnston

      Obama’s an honest-to-god conservative. That makes him a man without a party but much closer to being a Democrat than to being a Republican.

      That’s a sad state of affairs, but it’s very clearly reality nonetheless. We’d all be better off if it were more widely acknowledged.

      • L2P

        I know honest-to-god conservatives and none of them sound or act like Obama. He sounds more like my very liberal aunt who would spit if you suggested she has anything in common with the bible thumpers at the evangelical church down the street, but is also very concerned about Those Kids that Hang Out At the Circle K.

        • Uncle Kvetch

          I think when R Johnston referred to “honest-to-god conservatives,” he didn’t have the bible-thumpers in mind. They’re not conservatives; they’re radicals.

        • Holden Pattern

          “Conservative” as used in the US doesn’t actually mean “conservative” in any sense that corresponds to reality.

    • c u n d gulag

      Yes, because nothing in today’s dysfunctional America will spell reelection for President Obama faster than being known as “The LIBERAL BLACK Guy!”

      He’s a politician, not a f’in prophet or a martyr – or both.

      And he’s had more Liberal legislation pass under him in 3 years than Clinton had in 8.
      And sure, I wish he was able to be more Liberal. I think he might, too.*

      You want a more Liberal Obama administration?
      Go and help to elect a more Liberal Congress.
      That would be a good start.

      “Sheesh,” backattcha.

      *Btw – as an early supporter of his, and a far-far leftie, I realized that he was a centrist and a pragmatist, and not a Liberal, way back when he first started. What does anyone think he was talking about in his 2004 Keynote Address to the Democratic Convention? Was that an open cry for Liberalism?

      So, I’m hardly surprised. I think the ones that are surprised are the people who projected their Liberalism on the first black President.
      No open Liberal can win the Presidency in today’s America. None. Zip. Zero. Zilch. Notta one.
      Let alone a black one.

      • Incontinentia Buttocks

        So we’ve gotta keep electing people who govern like Republicans because otherwise we’ll be governed by Republicans?

        Somehow I don’t think this is a winning Democratic message!

        • Rarely Posts

          I would make an informed guess that most Democrats care more about other aspects of governance: such as health care, environmental law, labor law, unemployment benefits, consumer protection, immigration reform, gay rights, progressive taxation, social security, and voting rights.

          Perhaps those policies are more likely to form the basis for a winning Democratic message?

          • c u n d gulag

            You mean Big Government with death panels, tree-huggers, union thugs, lazy shiftless black people, Socialism, Wetbacks, dykes and queers, taxing the “Job Creators,” taking money from our children’s and grandchildren’s future, and ACORN?

            Now, I wonder why Democrats never tried to run on those?

        • c u n d gulag

          I love ya!
          And I’d love to vote for a real Liberal Democrat who might even vaguely have a chance at getting elected.

          Now, when you find one, you be sure to point him/her out to me, because I’m sure our next Democratic Presidential nominee will be a lot closer to looking like Andrew Cuomo than to Bernie Sanders or Russ Feingold.

          The DNC sold the parties soul a long, long time ago – and the f*cking beans they got didn’t even have any magic in them. Just a bunch of stinky farts that we have to hold our noses and vote for.

          • Bruce Baugh

            A whole bunch of people did actually vote for a candidate who promised some accountability for criminal actions by government officials and their buddies in industry, help for individuals and groups in need, and like that. That candidate Obama became president Obama doesn’t change the fact that a message of hopeful engagement for good causes can and does get votes, though the effect wears off as the promises get repeatedly betrayed. (See also, Democrats winning the Senate in 2006 with promises of action against the war and its abuses, which they then promptly gave up on.)

            • fledermaus

              Ah 2006, it was frustrating to watch Harry “Man of 1000 transparent excuses” Reid.

      • Rob

        Yes this brilliant strategy deftly avoids him being called a liberal socialist job destroyer who likes to tax and spend. The Republicans are sure stumped about what to do!

        • Uncle Kvetch

          Amen. Of all the bullshit rationalizations for Dem triangulation, “But if he doesn’t they’ll call him a DFH!” is the one that truly grates.

          I think R Johnston nails it: the guy’s a classical conservative. He is comfortable with the status quo and sees his mission as maintaining it.

          • witless chum

            If Obama announced tomorrow that he had just ordered a nuclear attack on Iran, outlawed the Democratic Party and would ask congress for laws ending all taxes on anyone making over $250,000 per year and a constitutional amendment banning abortion, the Republicans would call him a socialist.

            If you’re going to have to do the milking, you may as well get the cream.

            • c u n d gulag

              Oh, you’re just pulling our teats…

      • efgoldman

        …as… and a far-far leftie…

        Sorry, I don’t buy it.
        Far-far lefties don’t live and die with the Evil Empire.

    • Tcaalaw

      Why does the Obama administration so eagerly defend the GwB policies?

      In this case it’s presumably at least in part because it’s an election year and polling shows that bare breasts and the F-word on network television will alienate more independents than it attracts.

      • Incontinentia Buttocks

        Because there’s nothing America hates as much as cussing and naked boobs!

        • Rarely Posts

          Because there’s nothing (a significant portion of) America loves as much as hypocrisy and flagrant injustice. Seriously, people EAT IT UP! They LOVE when the Republican party lies to their face and they LOVE certain types of flagrantly unjust outcomes.

          So, we toss them hypocrisy and injustice on some relatively unimportant issues.

          • Bill Murray

            well a significant portion that will never vote for Obama. So justifying this behavior as electioneering doesn’t really make sense

        • Spud

          Hey, displaying naked boobs is one of the most profitable industries in America!

          C’mon guys, we all know that 50% of every hard drive is filled with porn.

          • c u n d gulag

            Hey now!

            “Naked boobs” describes some of us commenters.

            Ok, I’m not naked.
            At least not right now.
            But the 2nd part fits.

      • Rob

        Well yes now. Up until now?

  • Will

    You know, “Rather than end the silliness, the Obama administration has ‘defended the Bush ________ policy with great zeal.'” works pretty well as a one sentence mad lib summary of the Obama presidency.

    • Brautigan


      • mark f

        is wrong.

  • MPAVictoria

    This isn’t a left or right issue. Censorship is supported on the left as much as it is on the right. I personally oppose it but tons of left leaning people would love to censor things like pornography for example. It is the same old “Won’t somebody think of the children” crap we always see.

    /How about you think about YOUR children and let me enjoy my life?

    • R Johnston

      Oy vey. Not another false equivalence.

      Yes, both sides do it.

      No, both sides don’t do it equally or even close to equally.

      Censorship is a universal primary reflex on the right. It’s spotty happenstance on the left.

      • c u n d gulag

        Yeah, censorship’s just another one of the 180 degree turns they’ve done in the last 40+ years.

    • Holden Pattern


  • matth

    The consensus view here seems to be that the FCC policy is unconstitutional and that the networks ought to win this case.

    I agree — but I hope anyone who thinks “corporations don’t have rights” takes note of the fact that Fox and ABC are both corporations.

  • Uncle Kvetch

    anyone who thinks “corporations don’t have rights”

    Can you direct me to someone actually saying that?

    • c u n d gulag

      Well, no one was saying it, so HE said it.

      And now that it’s been said, his point’s been made.

      Or, something along those lines…

    • matth

      Let me try to clarify. In other contexts, like campaign finance, people often argue that corporations aren’t constitutional “persons” and don’t have constitutional rights. (Do you seriously dispute that this argument gets made? If you insist, I can collect links to comment threads on this blog.)

      But no one (so far as I’ve seen) thinks it matters for TV indecency that the plaintiffs are corporations. If corporations have free speech rights in this context, why shouldn’t they also have free speech rights when talking about political candidates? There’s a real tension here which struck me as worth noting.

      • mark f

        Has someone tried to stop Fox from eventually endorsing Mitt Romney?

        • R Johnston

          Equating content restrictions on speech with reasonable campaign finance regulations is the kind of thing only an idiot or a conservative would do.

  • Uncle Kvetch

    corporations aren’t constitutional “persons” and don’t have constitutional rights

    These are two separate arguments. The first gets made all the time. The second makes no sense.

    • matth

      “The first gets made all the time. The second makes no sense.”

      Constitutional “personhood” and having rights are (roughly) two sides of the same coin.

      What rights do you think corporations have? If you think corporations have a constitutional free speech right, for example, then you almost have to think they’re constitutional “persons.” (Only a “person” has free speech rights against state governments, because only “persons” are protected by the Fourteenth Amendment due process clause.)

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