The Supreme Court has agreed to take a case on decency standards on the airwaves, as enforced by the FCC. Legal issues on this level often turn on matters apart from the way they are debated in the public sphere, and I’m not a lawyer. But outside the courtroom, this story has played out in a not-very-clear fashion. It turns on incompetence on the FCC’s part and game-playing on the networks’.

The papers say this is the first Supreme Court case dealing with vulgarity on the airwaves since the celebrated “seven dirty words” case in 1978. (A Pacifica station in New York played the Carlin routine on the air, someone sued, and the affair eventually made it to the top court.) Linda Greenhouse in the NY Times says the gist of that ruling was that the government was allowed to keep indecent words off the air, as opposed to good old fashioned obscene stuff. She doesn’t say that the ruling originally applied to times when kids might be listening, though vestiges of the resulting network policy remain today.*

The case won’t be heard by the court until fall. Thoughts:

First, an issue that almost never gets articulated in coverage of cases like this, particularly in the alternative parts of the media: There’s no First Amendment right to say “fuck” on the airwaves. The complainers don’t make it clear that there is a very specific manner of oversight going on here: The FCC is fining the broadcast media for material sent out over the airwaves, access to which was essentially given out gratis and is now worth billions. The FCC isn’t saying you can’t say “fuck” or “bullshit,” or that you can’t print them. They are just saying you can’t say them on three or four of the 100 or so channels the average person has coming into his or her home.** This is not a decision that has any affect at all on anyone’s cultural life.

The networks know that, and if they don’t like it they can get out of broadcasting and into cable. Presumably we all agree that there is some subject matter on the continuum of cultural products in the world ranging from “Bambi” on one end to actual filmed bestiality on the other beyond which we would not like to see beamed over the air for free viewing by anyone, particularly kids, at any hour of the day. At this point, given the technology we’re using, where that line is drawn on a medium I barely watch any more is, to me, a jejune discussion. (In a few years I assume most of this stuff will be beamed into our houses in a way that would allow a V-chip-like system to work for most families.)

But if you think there’s some great blow being struck for artistic freedom when Bono or Cher says “fuck” at an awards show, more power to you. ***

That said, the FCC has not rigorously enforced the issue over the years and recently, most heinously of all, has enforced it inconsistently, leading to the absurd situation two years ago, when a single PBS station was fined for allowing old bluesmen to say “fuck” or “shit” in Marin Scorsese’s series on the blues, but ABC was given a pass after it broadcast “Saving Private Ryan,” which had a lot of swearing, unedited.

Among the many silly ways the FCC does its job is that it bases cases on viewer complaints. One complaint came in about the blues series, from the San Francisco peninsula. The result was the “Tom Hanks Rule,” which allows high-minded white actors to swear but not old black guys. That’s entirely comical, except that it’s created the worst of all possible worlds, in which the commission is de facto basing rules on content.

Who’s going to be establishing the canon of filmmakers whose work when it is shown on broadcast TV may include swearing—or maybe just a little breast? Violence alone is going to start causing problems. I can see a commission that says it’s okay for a net to broadcast Francis Coppola showing Al Pacino blowing away Sterling Hayden—because it’s art, clearly—but not okay for Rob Zombie’s sensitive portrayal of bloodthirsty maniacs on the road, because it’s not art, clearly. Leaving aside the possibility that Zombie is an artist, then the commission needs to make a rule on Quentin Tarantino doing horrific violence in a plainly arch way that encompasses both Zombie-style subject matter and a Coppola-esque virtuosity. Do you want the FCC debating that question?

* Even this is moot these days when with a little effort you can get east-coast programming on the west coast three hours earlier. For those receiving most modern cable these days, too, the self-imposed industry rating system is pretty much a joke outside the eastern time zone; in California, shows like “South Park” air at 7 p.m.

** Isn’t this debate tired? There will always be taboo words. If “bullshit” becomes permissible on broadcast television, it will eventually normalize itself (the way “ass,” “boobs,” and now “balls” etc. etc. have) and a new, banned taboo word will take its place. Then we’ll hear the clamoring for that one. This process may already be happening; Jane Fonda said the C word on the “Today” show the other day.

*** Some might say, what’s the harm of an occasional of-the-cuff expletive? The problem is that, once allowed, they will soon not be of the cuff, and the FCC will be put in the position of trying to decide how the word was used, or doling out an allotment of “fucks,” “bullshits” etc. etc.