Wednesday, April 29, 2009

Has Justice Scalia Introduced A New Pop Culture Term- "Foul-mouthed glitteratae from Hollywood"

I was reading an opinion that came out of the Supreme Court today. That is FCC v. Fox Television.

It involves a broadcast on Fox where Cher and Nicole Ritchie said some nasty words. People were not happy and neither was the FCC

Anyway in the opinion no doubt making a reference to the actors in this case he refers to them as
"foul-mouthed glitteratae from Hollywood".


Scalia fans use the term glitteratae ten times in conversation this week and lets see if this can catch on. :)

So legal latin nerds don't seem to get Scalia's humor here.

It is an interesting case because what is at issue here really is some important parts of Administrative Law and when a policy is changed how much of a burden or justification is required to be produced . It appears not as much as some thought. I agree that the Obama White House will enjoy this ruling and the GOP and others likely will find it to give them heartburn in the immediate future.

See Is Scalia's "F-Word" Opinion Good News for Obama?

First amendment issues were not put in front of the Court but boy I bet Justice Thomas has raised some eyebrows in his Concurrence.

Eugene Volokh notes as to Thomas Concurrence

Eugene Volokh, April 28, 2009 at 10:46am] Trackbacks
Justice Thomas Expresses Disagreement with Red Lion and Pacifica,
the cases holding that broadcast (non-cable) television and radio are less protected by the First Amendment than newspapers and other media. (Red Lion upheld the Fairness Doctrine and the Personal Attack Rule, which would be unconstitutional as to newspapers, and Pacifica upheld a restriction on using the "Seven Dirty Words" on radio and television.)

This came in Justice Thomas's concurrence in FCC v. Fox Television, which reversed the Second Circuit's decision that set aside a fine for the use of vulgarity on a television program. But the Court's decision explicitly rested only the administrative law question — whether the FCC's judgment was within its statutory authority, especially given earlier FCC decisions to the contrary — and left the constitutional question for the Second Circuit to consider, perhaps to be reviewed later by the Supreme Court.

It's thus possible that Fox will ultimately win, and get the entire scheme of restricting vulgarity on radio and television set aside, assuming of course four other Justices share Justice Thomas's view. (Recall that Justice Stevens, who voted for Fox on the administrative law question here, was the author of the Pacifica plurality, and continues to think that Pacifica was correctly decided; on the other hand, he would read it considerably more narrowly than the FCC does, and may well conclude that Fox should win on its First Amendment claim on the facts of this case.)................

Thomas's concurrence is worth a read as he screaming why no one did not bring this in briefs and argument (HINT HINT) Among other things it looks like that he is essentially preemptively attacking the "Fairness Doctrine".

Anyway interesting case that I think will have some major effects in all sort of places.

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