Indecent Speech and the Public Airways: Part I

I love the First Amendment, although not enough to announce it publicly, say, with the equivalent of an “I Love My Dog” bumper sticker.  “Congress shall make no law…abridging the freedom of speech or the press….”  Simple enough, right?  The First Amendment now applies to the states as well as the federal Congress and the operative terms “abridging,” “speech,” and “press” have been judicially operated on so many times that the result is as unrecognizable as Joan Rivers.

Still, I love that Amendment even with a facelift and botox injections.  If most Americans fully understood what freedom of speech has come to encompass, I suspect they would try to amend it.  The Amendment is written in absolute terms — no law — but 20th century decisions turned textual absolutism into empirical realism.

Not long ago, the First Amendment was viewed as in a “preferred position” among the other parts of the Bill of Rights; as indispensible to a democracy; as a foundation for a marketplace of ideas.  Restrictions by government on speech had to be based on a clear and present (or imminent) danger.  The venerable Justice Oliver Wendall Holmes opined that there are limits to speech; one cannot shout fire in a crowded theater.  And, of course, he meant unless one smelled smoke.  Left open would be the question of whether a patron of the arts might withhold his applause and shout, “That was the worst f…ing play I have ever seen.”

Notice my use of ellipses here.  Have I “ellipsed” as a matter of free will, struggling not to offend sensitive readers?  Might I face some legal trouble if I spelled out what every one of you know I mean?  Is a blog regulated by the Federal Communication Commission (FCC)?  I’d like to write, “who the f… knows,” but I’ll refrain.

All of this is an exciting (but not prurient) prelude to my next posting, which will discuss a case currently before the U.S. Supreme Court involving whether the FCC’s indecency policies are arbitrary and capricious and violative of the First Amendment.

Stay tuned please.