June 05, 2007

Taking no shit from judges

Last year, the New York Times famously printed President Bush's recipe for peace in the Middle East, "What they need to do is get Syria to get Hezbollah to stop doing this shit, and it's over." 32 years earlier, the Gray Lady printed the same four-letter word in a quotation from President Nixon that appeared in the House Judiciary Committee's transcript of the Watergate tapes. And in 1976, William F. Buckley was allowed to quote, in a book review, John Erlichman's fictional attribution of the same word to Lyndon Johnson. (See "Taking shit from the president", 7/19/2006).

However, it seems that circuit-court judges don't get the same privileges as House committees and famous right-wing publishers, not even when the judges are quoting the president in the highly relevant context of an opinion about FCC obscenity rules. At least, in a story this morning, Stephen Labaton uses some rather ornate circumlocutions to avoid printing what the judges wrote that our leaders said ("Court Rebuffs F.C.C. on Fines for Indecency"):

Reversing decades of a more lenient policy, the commission 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. [emphasis added]

You can find a link on the New York Times web site to the Decision by the U.S. Court of Appeals for the Second Circuit -- with an "Editor's Note" reading "This text contains potentially offensive language." If you summon up the courage to follow the link anyway, you'll learn what that "common vulgarity" and "angry obscene version of 'get lost'" actually were, at least in the judges' version (on pages 26-27):

The Remand Order makes passing reference to other reasons that purportedly support its change in policy, none of which we find sufficient. For instance, the Commission states that even non-literal uses of expletives fall within its indecency definition because it is “difficult (if not impossible) to distinguish whether a word is being used as an expletive or as a literal description of sexual or excretory functions.” Remand Order, at ¶ 23. This defies any commonsense understanding of these words, which, as the general public well knows, are often used in everyday conversation without any “sexual or excretory” meaning. Bono’s exclamation that his victory at the Golden Globe Awards was “really, really fucking brilliant” is a prime example of a non-literal use of the “F-Word” that has no sexual connotation. See Golden Globes (Bureau Decision), 18 F.C.C.R. 19859, at ¶ 5 (“As a threshold matter, the material aired during the ‘Golden Globe Awards’ program does not describe or depict sexual and excretory activities and organs . . . . Rather, the performer used the word ‘fucking’ as an adjective or expletive to emphasize an exclamation.”), rev’d by Golden Globes, 19 F.C.C.R. 4975 (2004). Similarly, as NBC illustrates in its brief, 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.” See Br. of Intervenor NBC at 31-32 & n.3 (citing President Bush’s remark to British Prime Minister Tony Blair that the United Nations needed to “get Syria to get Hezbollah to stop doing this shit” and Vice President Cheney’s widely-reported “Fuck yourself” comment to Senator Patrick Leahy on the floor of the U.S. Senate).

The reference to Bono's Golden Globe remarks is a bonus -- among our many posts on taboo language, this episode and its follow-up inspired a series that I'm especially fond of:

"On second thought, make that 'fuckingly brilliant'", 11/3/2003
"Maybe better make that 'freaking brilliant'", 1/25/2004
"Some people should get a life", 1/25/2004
"The FCC and the S word", 1/25/2004
"The Ngadjonji and the PTC", 1/25,2004
"Imprecational categories", 3/21/2004
"The FCC and the S-word (again)", 3/21/2004
"The S-word and the F-word", 6/12/2004

[Update -- Ben Zimmer points out that in Erlichman's novel, the use of the word "shit" is attributed to a fictionalized version of LBJ, who is given the name "Esker Scott Anderson".]

Posted by Mark Liberman at June 5, 2007 08:54 AM