Have Boston Celtics Fans Provided A Basis To Overrule 40 Years Of Supreme Court Precedent?

“Bullshit! Bullshit! Bullshit!” “Fuck you, Draymond!” “Fuck you, Draymond!”

Those slogans have become nightly chants for Boston Celtics fans at TD Garden through four games of the NBA Finals. Having been to TD Garden for a Game 7 playoff game, I can assure you that they are very loud about expressing their displeasure. In fact, deafening is the only appropriate word for it.

ABC has done a decent job in editing its audio feed of the games, but, late in Game 3 of the NBA finals, it encountered a problem. Chants of “Fuck you, Draymond” threatened to hijack Mike Breen, Mark Jackson, and Jeff Van Gundy’s commentary for 10 to 15 seconds. Every word was clearly audible over the broadcast as Boston fans expressed their displeasure with Golden State Warriors forward Draymond Green. If it had been a one-time occurrence, I wouldn’t have noticed it. Sports fans will be sports fans. A few minutes later though, Mr. Green drew the ire of Celtics fans again, and the chants came through loud and clear on the broadcast.

In Game 4 of the NBA Finals, the referees called a foul on Celtics forward Al Horford when Warriors star Stephen Curry clearly pushed off with a full forearm extension during a layup attempt. Celtics fans pelted the referees with a “Bullshit” chant for 10 seconds before ABC finally blurred the audio.

Both incidents invoked the constitutional lawyer in me. If I went on a radio or TV show to do an interview and used an expletive that wasn’t bleeped out, the Federal Communications Commission (FCC) would fine the station for allowing me to use uncensored profanity or obscene or indecent language. Why does ABC get a pass for a major sporting event? Why are we even accepting the premise that our government has the authority to censor what we can hear and not hear?

The answers start in 1973. Famous comedian George Carlin recorded a monologue entitled “Filthy Words” in front of a live audience. A New York radio station subsequently rebroadcast the recorded monologue on October 30, 1973. A man then complained to the FCC that he had heard the broadcast while driving with his young son. The FCC demanded answers from the radio station, the Pacifica Foundation, which stated that it had warned listeners before playing the segment and that Carlin had been engaged in satire. The FCC issued a declaratory order finding Pacifica had violated 18 U.S.C. 1464 but stayed discipline.

Pacifica sued the FCC, and the case went to the Supreme Court as FCC v. Pacifica Foundation. The Supreme Court characterized Carlin’s monologue as not being an “essential part of any exposition of ideas…” and “of such slight social value as a step to truth that any benefit that may be derived from [it] is clearly outweighed by the social interest in order and morality.” It further explained that radio and television broadcasts invade the privacy of the home and confront individuals without warning and with vulgar material, thus increasing the risk of a child’s exposure to the language.

The Pacifica decision created an indecency exception to the First Amendment that bore some loose relation to the Court’s obscenity exception articulated in Miller v. California. The difference between the obscenity and indecency exceptions is that obscenity requires a clear tie to sex (e.g., hardcore pornography) while indecency pays fledgling homage to the obscenity exception’s tie to sex but grants far broader authority for censorship.

The Supreme Court has never revisited the indecency exception since although Fox Broadcasting attempted to get it to reconsider it twice in 2009 and 2012. Strangely enough, Justice Clarence Thomas opined that he would overrule Pacifica in 2009, and the late Justice Ruth Bader Ginsburg agreed that she would overrule it in 2012.

ABC likely will not get fined for clearly broadcasting 20,000 Celtics fans repeatedly yelling “Fuck you, Draymond” at the top of their lungs. Likewise, it will not get fined for clearly broadcasting 20,000 Celtics fans yelling “Bullshit” as loud as they could. There is no question that ABC’s broadcasts invaded homes under Pacifica‘s logic and that many children were exposed to the language.

The sheer hypocrisy of such a rule cannot be overstated. The First Amendment makes no distinctions between print, broadcast, and cable media. It also makes no distinctions in how big of a crowd you get to say certain words. What is the difference between a political commentator saying “Fuck you, Biden or Trump” on an ABC broadcast and 20,000 Celtics fans yelling “Fuck you, Draymond” during an ABC broadcast? What is the difference between a political commentator saying “Bullshit” when commenting on something Joe Biden says and 20,000 Celtics fans yelling “Bullshit” at a bad call by a referee?

I can’t see the difference. While the language might be offensive and vulgar to many people and they may not want their kids exposed to it, there are simple solutions. Turn off the volume. Turn off the TV. Turn off the radio.

There is no basis for sensibilities-based exceptions to free speech in the First Amendment. ABC’s technical errors and the collective will of 40,000 Celtics fans over two nights have shown us that. Offensive speech for me but not for thee is not liberty. It’s a one-way course to wokeness. It’s time for the Supreme Court to overrule Pacifica and correct 40 years of bad precedent.

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