Hadley Arkes has an interesting piece up at the Right Reason  site wondering if Justice Scalia and Anthony Kennedy aren’t finally converging on a shared standard of decency:

Close to ninety per cent of the households in America have access to cable, and viewers may readily switch back and forth, out of the domain regulated by the FCC. The question was why it was worth preserving those modest standards of propriety in this one portion of the media, and Kennedy, hunting for the answer, wondered whether it was “just because it’s an important symbol for our society that we aspire to a culture that’s not vulgar—in a very small segment.”

But this was a sentiment rare and faint, trying to break through among the lawyers on both sides as the Court  heard the appeal in  FCC v. Fox Television Stations . The case involved an accumulating series of incidents that had moved the FCC from a posture of presumptive tolerance to the need to  do something , to make some telling response to instances telling enough that the viewers could hardly fail to notice. The triggering incident came in a program on NBC for the Golden Globe Awards. The singer Bono, receiving an award, shouted out that “this is really, really, f—-ing brilliant.” The outburst brought a rush of complaints, and the FCC delivered itself of the judgment, for the first time, that a single use of this expletive (a so-called “fleeting expletive”) could be actionable as “indecent” under the FCC rules. In explaining the judgment the Commission noted, in a line that should stir no bewilderment, that “the F-Word is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language.”


Count me very much on the side of those who think it’s worth upholding standards of decency, both on and off the public airwaves, through appropriate laws and societal pressure.

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