Friend O’The Blog Brian D. — who’s not only a pal, but one of those rare lawyers with a sense of humor — shot me a message regarding yesterday’s post about the Supreme Court’s “fleeting” profanity discussion that helps put some of the remarks in better context. Over to you, BD….
Reading today’s blog, curiosity got the best of me and I set out to find the transcript. As great as the Post article was, the reporter actually bungled it. In that exchange, Garre was actually conceding (for the moment) that if something is “funny” it may not be “shocking, titillating, or pandering” and therefore the FCC would consider that in not fining someone — which was the proper set up for Scalia’s joke.
Here’s the exchange:
JUSTICE STEVENS: Maybe I shouldn’t ask this, but is there ever appropriate for the Commission to take into consideration at all the question whether the particular remark was really hilarious, very, very funny? Some of these things —
JUSTICE STEVENS: — you can’t help but laugh at. Is that — is that a proper consideration, do you think?
GENERAL GARRE: Yes, insofar as the Commission takes into account whether it’s shocking, titillating, pandering –-
JUSTICE SCALIA: Oh, it’s funny. I mean, bawdy jokes are okay if they are really good.
I’m with you — can’t wait to read the decision on this one.
Back to me again. I’m glad to see the Justices have a sense of humor about it, even as they continue their delicacy with language (it’s like the Monty Python sketch, where a group of politicians trying to come up with a new sin tax keep talking about taxing “thingy”). But I think it also brings up a good point that I hope they’ll keep in mind during their decision: context counts. I’m glad Stevens is questioning whether that deserves “proper consideration.”
We’ll see what happens. Keep watching.