first amendment

Two days ago, the Second Circuit on remand from the Supreme Court, struck down the FCC’s policy on “fleeting expletives” (don’t you love how bureaucrats can make anything sound clinical and boring?) as being unconstitutionally vague. Incomprehensible is also a good word to use here. Here’s a choice paragraph. Don’t worry kids, since you’re on a 7-second time lapse, you’ll only see **** where the expletives are:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. . . . The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them.

From the WSJ:

The decision doesn’t mean broadcast TV and radio shows will now be littered with profanity, because advertisers and viewers would likely complain. But the ruling will likely end, for now, the commission’s campaign to cleanse the airwaves of even spontaneous vulgarisms with the threat of hefty fines.

Interestingly, the indecent policy doesn’t apply from 10p.m. to 6a.m. and only covers the networks anyway, but when’s the last time you heard someone say fuck on cable television even at midnight?

For some dense it-could-only-come-from-a-law-prof legal analysis of the decision and its implications, click here. For the second grade reading level analysis, read this. As you can tell, I’m all for this decision right now, but if I’m ever subjected to Janet Jackson’s nipple again, I might sing a different tune. I still wake up with a cold sweat in the middle of the night and see tassels floating before my eyes.

The most interesting article produced as a result of the FCC ruling is this one from Reason, asking the important question: “if indecency is unconstitutionally vague, why isn’t obscenity”? Everyone who’s been within 1500 feet of a law school knows the old “you’ll know obscenity when you see it” line. Sort of like how my contracts professor explained consideration to us: “It’s like chicken sexing. You’ll know it when you see it.”

Exactly.

What I find obscene may not be obscene to you, or, more likely, what you find obscene will not be obscene to me. Take this, for instance. It’s both obscene and indecent. Yet there are no fines.

So, ponders Sullum:

What both definitions have in common is an inescapable vagueness and subjectivity that make enforcement actions utterly unpredictable. Both require the application of “contemporary community standards,” whatever those are, and a judgment about what is “patently offensive.” In practice, this means broadcasters are at the mercy of bureaucrats’ capricious tastes, while the freedom of a defendant in an obscenity case hinges on exactly how icky a bunch of randomly selected people think his films are. The results cannot possibly be anything but arbitrary. As anti-porn activist Patrick Trueman concedes in Reason.tv’s video “Obscenity vs. Freedom of Speech,” the films that triggered Stagliano’s indictment are “in many respects typical of what’s available today”—i.e., they are not different in kind from pornography that is widely available in the District of Columbia (where Stagliano is being tried) and throughout the country. Yet as Richard Abowitz reported the other day, the judge overseeing the trial has barred Stagliano from presenting testimony to that effect.

[This Stagliano trial is highly amusing for several reasons. One is that the prosecution couldn't get the damn video to play; the same video it says is obscene. Today, the judge precluded the State from entering that video into evidence.]

Will the Supreme Court agree to review the Second Circuit’s decision? Will they hold that the FCC’s policy is indeed unconstitutional? Will people start saying “fuck” on national TV during primetime? Stay tuned.

But you didn’t come here and read this post for First Amendment analysis. You came for the video. And let’s be real, this entire post is a big fat excuse for two things: 1. For me to say fuck as many times as I can. Fuck.

2. This:

Did I say fuck yet? Fuck.

The blawgosphere is up in arms about the 2nd Circuit’s decision today in Doninger v. Niehoff, a.k.a., the “douchebag” case (get the witty title? )

I have not been inclined to follow this case very closely and I will admit that I made up my mind early on, stemming from some archaic sense of discipline and respect and other such nonsense. Reading the blog posts today, however, I wondered if I was wrong. So I decided to do the only sensible thing and read media reports the decision.

What I also found in the blawgosphere was a mis-reporting of the facts. Perhaps they thought they were the MSM for a day.

So let’s look at the facts, as found by the District Court and adopted by the 2nd Circuit:

1. Jamfest was some sort of band-off, which was scheduled for April 28.
2. At a student council meeting on April 24, the students were made aware that, for reasons that are unimportant, the date or venue needed to be changed yet again.
3. That morning, four students, including the plaintiff, met in the computer lab, accessed someone’s e-mail account and sent out a mass e-mail to students, asking them to contact administration to urge them to hold Jamfest as scheduled.
4. Both defendants received an influx of e-mails and telephone messages. One of them, who was away for the day on school business, had to be called back to deal with the situation.
5. Later that day, the principal spoke with Avery in a hallway and advised Avery that she was disappointed that the student council had resorted to mass e-mails rather than going to her or the superintendent to resolve the issue.
6. The principal also expressed disappointment that the e-mail contained incorrect information, because the administration was open to moving Jamfest to another location.
7. Avery apparently agreed to send out a corrective e-mail. That never happened.
8. That night, the infamous blog post appeared, which stated that “jamfest is canceled due to douchebags in central office” and exhorted students to write and “piss her off more”.
9. Lots of students took up that request and wrote and wrote.
10. The very next day, the student council and the administration decided that Jamfest would be rescheduled for June 8.
11. Despite this resolution, the administrators continued to receive e-mails and calls about rescheduling.
12. On May 7, the post in question was discovered by the son of the superintendent.
13. The principal concluded that concluded that Avery’s conduct had failed to display the civility and good citizenship expected of class officers.
14. They declined to endorse her nomination for Senior Class secretary, though she was permitted to remain as a representative in the Student council.

Scott Henson, over at the always interesting Grits for Breakfast, has been following this story out of Bexar County in Texas (original post and follow up), which chronicles the efforts of the Texas AG, on behalf of Bexar County probation director Bill Fitzgerald to out anonymous blog commenters at a probation officers’ employee blog .

As part of an ongoing feud with his employees over whether the department will unionize, Bexar County probation director Bill Fitzgerald is seeking the identities of anonymous employee blog commenters on a relatively new blog called Bexar Me the Pain.

This is indeed very troubling, not only for those employees targeted, but for what kind of precedent it could set if the “outing” were permitted. Everyone seems to be pretty clear that the comments would be covered by the guarantee of Free Speech under the First Amendment [Note that (as far as I can tell) the AG is seeking the "outing" of the commenters and not the author of the blog.]

Scott asks:

I also wonder what Greg Abbott, the Texas Attorney General, thinks about his minions trying to out anonymous blog commenters, not because they libeled anyone but simply to expose them to possible retaliation? Why would Abbott allow his attorneys to bully Bexar probation officers this way?

And would Google have just turned the information over if plaintiffs’ attorneys hadn’t filed a motion to quash? I’ve wondered about this in the context of Texas Youth Commission commenters on Grits, and this makes me more curious than ever what information Google/Blogger keeps on IP addresses of anonymous blog commenters and under what circumstances they release the information?

Here [pdf] are all the pleadings in this lawsuit, but they total 270 some pages, so here’s the Motion to Quash, which should give you a basic idea of what it is all about. Grits’ coverage of the lawsuit is here and here.