Friday, June 22, 2012

The Procrustean Constitution

Justice Anthony Kennedy has reminded me yet again of the Court's default setting in culture-war cases since the 1960's.  His legal reasoning can be summed up as heads-the-Left-wins, tails-the-Right-loses.

Part of Justice Kennedy's opinion in Federal Communication v. Fox is excerpted in today's Wall Street Journal.  
A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. . . . This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. . . . It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement." . . . 
Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. . . . When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. . . . 
The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission's standards as applied to these broadcasts were vague, and the Commission's orders must be set aside.
In other words, people of ordinary intelligence at Fox Television, et al. didn't have fair notice that airing fleeting expletives and momentary nudity would expose them to penalty.  That's because the regulation they ran afoul of was unconstitutionally vague.

Uh-huh.  If only they'd known, they most assuredly would not have tried it.

Actually, had the regulation at stake been worded specifically to prohibit nudity and expletives--Catch 22!--it would have been struck down for being unconstitutionally restrictive.  A regulation like that might limit screen sirens' wardrobes to Victorian collars, and have actors speaking only the king's English.

Either way--radically indeterminate, or impermissibly restrictive--it is feared that actors and speakers will chill their expression and deprive themselves the full range of their expressive rights.  God forbid that thespians, entertainers and revolutionaries might forgoe scratching an itch in public.

Thus, like Procrustes, the Court has two beds, one supposedly too long, the other too short.  Any and every regulation that aims to throw a little caution into people constantly pushing the envelope of decency will be be put into one bed or another and either racked or amputated.

Justice Kennedy intones this blather with the solemnity of a high priest.  Television producers who flash us nudity or vulgar language operate within the sacred zone of "constitutional rights."

Those of us at the sewer's end, who have children imbibing this sludge, have no rights not to be mugged by erotic or foulmouthed entertainment.  Five decades of this pretense at reasoning have given us Neanderthal sports talk, Irma la douche fashions for our daughters, and a drooling citizenry.

The reason the FCC passed regulations is because the people on the receiving end of Fox's degeneracy are either sick of it or addicted to it.  Both groups deserves some consideration under the law, which they are unlikely to receive as long as Procrustes is on the Court.

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