Wednesday, April 29, 2009

Scalia don't like talk about poo, boning, or empirical data

I've already pulled several muscles in my neck  shaking my head over this but in case it passed your notice the Supreme Court upheld the FCC's authority to regulate naughty words aired over broadcast television.   Irony abounds....

First of all Im an unlikely ally of the Fox Network in this.  Clearly they are on the side of God here, but this would be the same Fox Network whose "news" division employs  legions of windbag assholes who would use the facts of this case to evidence that liberal elites are debasing our culture with their potty-mouthed disregard for wholesome American values.  So just to tie up loose ends, one side of  Fox's mouth is suing the government for the protection to broadcast Cher saying "fuck" while the other side of its mouth points to Cher saying "fuck" as a sign of the unravelling of society.  Fuck.  Clear contradictions in behavior just don't  embarrass some people so what can you do.

Small beans however when compared to Scalia's majority opinion.  For the sake of review the man is one of the most aggressively conservative Justices in decades who claims to wash his ideological hands clean on the altar of original intent and strict construction.   Perish the thought  that he might ever allow his thinking to be muddled by personal biases or passing fads of society that could tempt him into (gasp) judicial activism.  Lets cut to the opinion shall we.....?

This sworn enemy of  constitutional creep has somehow discovered in that very same eternal document that the government has the right to limit free speech in the interest of  protecting children from the "first blow" of bad language, Im assuming no pun there.  Scalia opines: 

"Programming replete with one word expletives will tend to produce children who use (at least) one word indecent expletives.  Congress has made the determination that indecent material is harmful to children and has left enforcement of the ban to the Commission"

So this man who finds no  explicit right to privacy in the Constitution can find justification for the government to proactively determine what language is harmful for your children to hear and limit free speech accordingly at its discretion.   That's right, small government hero Scalia has no problem with allowing some unelected agency lifer to decide what warrants governmental smack down and what doesn't.

"...the agency's decision to consider the patent offensiveness of isolated expletives on a case by case basis is not arbitrary or capricious"

Im not making this up.   Lest you  think Scalia has summarily changed the definition of arbitrary or capricious he goes on to justify that a prime time recitation of  Chaucer's The Miller's Tale  would not likely fall under the scope of the FCC's concerns because it "would not be likely to command the attention of many children who are both old enough to understand and young enough to be adversely affected".   Cher however is one of those glittery Hollywood types that kids can't resist I guess....

Just to keep score now.  Scalia's government can: make determinations about what your kid should hear, judge the relative level of societal  harm by guess-timating  audience size, and peg exactly how old a kid has to be to occupy this "fist-blow" danger zone.

It gets even better.

How, you might ask, does Scalia justify all this??  Turns out that's a goddamn good question because he does admit that  "There are some propositions for which scant empirical evidence can be marshaled and the harmful effects of broadcast profanity  is one of them."  Meaning of course that I have no idea if this is even bad in the first place but Im going to support its ban anyway.  See, that doesn't feel original intent-ey to me at all....

Clearly though he's foresees the corner he paints himself into:
"If enforcement has to be supported by empirical data, the ban effectively would be a nullity"    Jesus, Mary, and Joseph!!!!!!!    Don't ask me for evidence, Im a Supreme-fucking-Court Justice here.  You may kiss my ring now.

If you  know me you know I cannot get through the day without saying fuck repeatedly and obviously my children know this too.  I've chosen to deal with that by telling them what curse words mean and allowing them to use them around me and only me if they choose and mostly they choose not to.  When they do curse around me they don't do it very well.  I want to teach discretion here without making certain words seem "grown up" and more alluring to them.   Like most of my parenting I probably have this exactly wrong but the point is that its my choice to make and not some appointed douchebag who has made a career out of pretending like he's purged of personal bias and guided by the purity of his intellect alone.


  1. "Clear contradictions in behavior just don't embarrass some people so what can you do."

    Then again, some might say that small minds can't tolerate the intellectual tension of a dichotomy.


  2. Allowing for the possibility of Constitutional dichotomies are you??

  3. is a balance between freedom and responsibility.

    Example: Freedom of Speech is protected, but we cannot yell fire in a theatre.

  4. Veering awfully close to the kind of thinking someone I used to know called situational ethics.....

    In any event absent either a fire or theatre in this case all we can look to is the quality of reasoning offered and it aint so good.

  5. So you want find out for sure that profanity is harmful to developing minds, so you expose them to profanity and damage them in the name of "empirical data"?

    Recall in your psychology class that the 1971 Stanford prison experiment was stopped due to emotional damage being done to the adult students....rather than completing the experiment for the sake of "empirical data."

    Hence a precedent for young adults was much more so for children?

    I don't think Scalia's stand is as insane as you make it out to be....setting aside your aberrational personal parenting style :-)

  6. So the random results of a single study over 30 years ago is suddenly Constitutionally relevant?? You know better. Sacalia is wrong as he often is. This will go to a lower court, get overturned and that will stand and it'll just be another poorly reasoned decision on Scalia's part