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Scalia Flips Off Media Again in Decency Case

April 29, 2009

By a 5-4 decision, the Supreme Court Tuesday upheld new FCC fines against broadcasters who air "fleeting expletives" such as those used in recent years by Bono, Cher and Nicole Richie. In his majority opinion, Justice Antonin Scalia as usual missed no opportunity for a skirmish in the culture wars, blasting "foul-mouthed glitteratae from Hollywood." Of course, given his own penchant for flipping off reporters - in a church no less - Scalia could again run afoul of the standard of decency he claims to uphold.
In ruling (ironically) against Fox, Scalia did not address the constitutionality of the FCC's rules he insisted were designed to "give conscientious parents a relatively safe haven for their children," instead sending the case back to the appeals court. But when confronted with Justice Breyer's dissent that the Court said "nothing at all" about "the likely impact of the new policy on the coverage that its new policy is most likely to affect, coverage of local live events--city council meetings, local sports events, community arts productions, and the like," Scalia thundered against his usual suspects:

"We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood."

But if Antonin Scalia is truly concerned about halting the "coarsening of public entertainment" and "programming replete with one-word indecent expletives [which] will tend to produce children who use (at least) one-word indecent expletives," he might start by looking in the mirror.
As Dahlia Lithwick hilariously detailed three years ago in Slate, Justice Scalia famously issued the Sicilian equivalent of the finger to a Boston Herald reporter after attending a special Red Mass for lawyers and politicians at Boston's Cathedral of the Holy Cross:

When the reporter, Laurel Sweet, asked what Scalia had to say to critics who question his impartiality in light of his Roman Catholic beliefs, he offered a familiar hand gesture, adding, "You know what I say to those people?" and, evidently by way of explanation, "That's Sicilian."

For his part, Scalia was quick to brush off the episode. While his spokesman insisted the "hand off the chin gesture that was meant to be dismissive" and not obscene, Scalia himself responded with a letter to the editor. Citing Luigi Barzini's book The Italians, Scalia claimed his chin flip simply meant, "I couldn't care less. It's no business of mine. Count me out."
In response, the Boston Herald acknowledged the gesture mayor may not have been obscene, but introduced new evidence of Justice Scalia's vulgar intent:

They appended to the record the photographic evidence of the gesture in question and the testimony of the photojournalist who snapped the shot, to wit: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, 'Vaffanculo.' " The Herald helpfully translates, "(expletive) you."

As Lithwick notes in her piece, her jury is still out on the matter. Regardless, by resorting to his dubious gesture in a church "just minutes after receiving the Eucharist," Antonin Scalia showed his disdain for any notion of a parental "safe haven for their children."
As Bob Woodward and Scott Armstrong recounted in their book, The Brethren, Justice William Brennan had his own "private definition" of obscenity his clerks deemed the "limp d*ck" standard. Justice Potter Stewart in 1964 declared, "I know it when I see it."
So it is with Antonin Scalia and basic norms of decency and civility. In FCC v. Fox Television Stations, Scalia flipped off the media - again.

3 comments on “Scalia Flips Off Media Again in Decency Case”

  1. You have got to be kidding me. This thug had the cajones to complain about coarsening the culture?


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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