Scott versus Scott

Welcome to our blog. Here we will debate the days most serious topics and allow users the chance to discuss the topics as well. The range of topics will vary, but one thing will remain certain, the debate will rage on. Scott Lesinski is a proud conservative and Scott Jones is a proud liberal. However, the roles will switch on some topics. Stay tuned.

Scott Lesinski is currently an actuarial associate for a large human resources and insurance consulting firm in Saint Louis. He is also an avid student of US history and enjoys following current events, with an eye to their contextual relationship to the past. He is also, in fact, a former student of Mr. Scott Jones. Scott is working toward his FSA credentials, which is akin to earning a PHD in Actuarial Science.

Scott Jones is currently a high school social studies teacher at a high school in suburban St. Louis, MO. He teaches World History, AP American Government and Senior American Foreign Policy. He has a BS. Ed. (Secondary Social Studies) from the University of Missouri - Columbia and a M.A. (History) from Southeast Missouri State University. He is currently working on a dissertation in character education to earn a Ph.D. in Educational Psychology.

Sunday, May 10, 2009

Scott J. on Conservative Hypocrisy and the Supreme Court

One thing that liberals and conservatives disagree on is the idea of how much regulation is needed to protect us from ourselves. Conservatives like to argue that they oppose excessive government regulation. However, the facts seem to betray their stance.

Recently, the conservative wing, this time including Justice Kennedy, of the Supreme Court of the United States (see for a great blog on the Court) recently ruled that excessive government regulation is not only okay, it can be made up on the spot. All that matters is the issue at hand. The case I am referring to is FCC v. Fox Television Stations, et al. (07-582).

The Radio Act of 1927 states that “No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication” – a provision since extended to television. The Court defined obscene in 1975, but the FCC decided to investigate complaints on a case-by-case basis taking into account variables such as time of broadcast, live or taped, context of usage, etc. Over time, it became apparent that the broadcast of live events that included non-company individuals (i.e. athletes during a live sports broadcast) would have the most leniency from the broadcast regulatory agency. The agency rule allowed that any “isolated or fleeting” use of expletives during such broadcasts would be acceptable.

However, in 2004 and without the input of those affected by the decision, the Federal Communications Commission changed their minds on the topic. In March of that year, the FCC unilaterally ruled that any use of the “F-word” after Cher, Nicole Richie and Bono had used the word on live broadcasts.Fox TV, where Cher and Richie had used the expletive, sued the FCC claiming that the agency did not have the power to ban all uses of any language as arbitrary and capricious. The case made its way through the Courts. The Second District upheld the new FCC regulation while the Second Circuit overturned the regulation. The Supreme Court heard the case and issued its ruling on April 28, 2009.

Justice Scalia’s opinion in this case is appalling, especially considering his dissent in Massachusetts v. Environmental Protection Agency (05-1120) as well as a few other decisions.

In Massachusetts, Justice Scalia dissented in the majority’s ruling that the EPA’s unilateral decision to include carbon dioxide as a greenhouse gas responsible for human effects on climate change was within the bounds of the EPA’s mandate. Justice Scalia, however, in a separate dissent, claimed that the Clean Air Act was intended to combat only surface level pollution and not to combat climate change. He further argued that the new EPA standards were capricious did not take into account the opinions of those effected by the EPA's new standard on greenhouse gases. Even though I disagreed with his views in this manner, I respected his opinion in this case. The past tense is used there because in light of his FCC majority opinion, I can no longer.

In FCC, Justice Scalia actually stated that he believed the FCC’s decision was within the boundaries of the Radio Act and the FCC sufficiently justified their change in position. I guess climate change is just a myth. Come on, climate change threatens the entire human population and the use of the “f-word” during a live television broadcast threatens only the sanctity of the dead.

Let me get this straight, however, I am not endorsing the universal use of the “f-word” on over-the-airwaves television, but I don’t think the government moral police should keep me from being able to make choices in my television viewing. When Tiger Woods hits a bad shot, I want to hear him curse. It makes me feel better about my own reactions to a bad golf shot.

Why just the “f-word.?” Let’s censor all speech that people could find offensive. What if Tiger Woods hits a bad shot and says “What a fricking bad shot!!”? Isn’t the word fricking just a euphemism for the actual “f-word?” Bono gets on stage after winning a Grammy and says “Shoot, this is awesome!!” In this case, isn’t the word shoot just a euphemism for the actual “s-word?” I think the use of fricking and shoot should fall in the same category because, after all, the meaning is the same. Isn’t that at the core of why actual curse words are banned?

This regulation, however, seems to not have the conservatives upset.They argue that government over-regulation hinders the free market in a way that destroys competition. According to this argument, the FCC, and its regulation against the "f-word," is a waste of taxpayer money.

If this isn't over-regulation, then what is? Since the market should be allowed to regulate itself, shouldn’t television stations be able to broadcast whatever they want? If you find the broadcast offensive, turn it off. If enough people turn off the broadcast, then the station must decide to either not broadcast such things or go out of business. Problem solved and no government intervention necessary.

Furthermore, I understand that, on the surface, I may seem to have hypocritical stance on this issue. My intent is to point the hypocricy of the conservatives as it relates to regulation. I don't completely disagree here with the Court's ruling overall. While the accidental broadcast of a curse word during competition might be okay, I don't want Bono gratuitiously cursing just because he can. What is okay and what is not okay, especially on touchy subjects as this one, is probably best left to the people who will vote with their remotes.

Another problem with the decision in FCC is the Court's conservative majority opinion in Federal Election Commission v. Wisconsin Right to Life (06-969). Here the majority, in an opinion authored by Chief Justice Roberts, the FEC's regulation on special interest ads, which was passed by Congress, was an unconstitutional violation of free speech. Apparently, only speech that the justices like is protected. I wonder if it had been Planned Parenthood would the conservatives on the Court had been so quick to strike down McCain-Feingold.

This is just another example of the conservative wing on the Court, when they can get Justice Kennedy on their side, making up doctrine as they wish. For instance, in District of Columbia v. Heller (07-290), the conservatives reasoned that it was okay to throw away "original intent" when the issue suited them.

According to the idea of originalism, we must go back to the intention of the Founding Fathers to rule on current constitutional issues. However, when the original documents give us contradicting viewpoints, as they do in Heller, concerning the intent of the Second Amendment and gun regulations in the eighteenth century, orginalism dictates that the decision is best left up to the popularly elected legislative bodies. In his majority opinion in Heller, Justice Scalia threw out the founders' contradictions concerning gun regulation and the Second Amendment and overturned the popularly elected city council's handgun regulation despite its obvious betrayal of "original intent." Apparently, legislating from the bench is also a conservative thing to do as well.I guess

Justice Scalia thinks somehow the fleeting use of the “f-word” during a live television broadcast presents a “clear and present danger” (see Gitlow v. New York and Schenck v. United States for more on speech that endangers others) to society and needs to be regulated. However, political speech he agrees with or gun rights he legislates are okay. Therefore it is okay for me to say "go get your illegal handgun because we're going watch pro-life ad." However, don't put the "f-word" in there. Hmm….oh well, “f-word” it!! Sorry if I offend. Turn off the post.


  1. I always always like to throw in my two cents but Jonesy, this just doesn't make sense to me.

    I'm not sure that this is the best example.

    I don't really think, and you can convince me I'm wrong, that TV and censoring it could be a free market. What's your idea for that?

    I look at it more like you should be able to flip through channels and not all of a sudden you can hear an "F bomb" when your child is sitting next to you, especially if you don't know what is on that channel. I tried really hard to think of a good analogy and I think I came up with one that yourself would be sensitive of.

    Let's equate a whole line up of channels say 70 channels with a line of 70 bars. Some of those channels don't have cursing and some do and you're not sure which ones you could flip past and hear that. Some of those bars have smoking and some are non smoking and you want to find a non-smoking one. If you have to walk through every bar to find a non-smoking one and the first 15 are smoking that's not really cool. Likewise if you are channel surfing and hear a curse word on the first 15 channels with your child sitting next to you, that's not really cool. I do realize some people have digital cable with a guide so you can see what show you're picking, we can call that the same as having a sidewalk outside the row of 70 bars which would certainly help. So then you have live broadcasts. Let's say this live broadcast is awesome, like the Superbowl, and you want to watch it with your family and then boom, a player makes a bad play and here come the obscenities. Like if you were in this awesome bar, that could be filled with smoke, but for now there's nobody smoking. There's an awesome band you're watching and then all of a sudden 3/4 of the place lights up, then what?

    That may be a terrible example but I just feel like, on regular network TV especially, that you need some censoring if nothing else than to protect at least some of the innocence of children.

    What's your policy on swear words in your classroom?

  2. When a student swears, and it rarely happens, I use it to teach.

    If you read the post closely, I said that I agree with the FCC ruling. Sure, the occasional f-word during a live broadcast is going to happen as we demand to be closer and closer to the action, but we should not allow for it to penetrate all aspects of broadcasting. This is government regulation I am for.

    The purpose of the post is to point the hypocrisy of the conservative wing of the Court. They want regulation and then they don't. On top of that, they can't seem to agree on reasons for their decision. It seems like they want their cake and to eat it too.

    I used the FCC ruling and compared it to the reasoning used in Massachusetts and Heller. I can't figure out how Justice Scalia, Justice Thomas, Chief Justice Roberts and Justice Alito reason their decision. I'd love some help from the conservatives on the blog.

  3. SJ,

    I've spent some time trying to find exactly the decision by Scalia but I cannot. If you have that linked quickly that would be so helpful.

    I'm not a SCOTUS junkie, but I could tell you my two cents at least. I think it pretty clearly states in the Constitution that we have the right to keep and bear arms. Scalia saw that amendment to the Constitution and proclaimed that banning handguns in DC went against that amendment. Simple enough.

    Conservatives' biggest beef with the SCOTUS is probably Roe v. Wade, where the justices "discovered" a "right to privacy" which somehow was "interpreted" to mean that women have a "right" to an abortion.

    That is the kind of legislation from the bench that gets us riled up. When a justice interprets "the right to keep and bear arms" as meaning you have the right to own a handgun, that doesn't take quite so much of a stretch.

  4. Scott L., is a great place to look up cases and opinions. Go there and type the name of the case and it will be there. You can get merit briefs, amicus briefs, oral argument audio and transcript and the opinions on most cases.

    What I was referring to is the lack of original intent that he prides himself on using to decide cases. The founding era is inconclusive. Also, the Second Amendment is the only amendment that includes a preamble. "A well-regulated militia..." and then the listing of the right. What does that mean?

    When we look to the founding era, it was meant to guarantee States the right to keep a militia and that militia style guns would be allowed to be kept. However, there were many regulations on gun ownership in the era, including bans on guns that were not militia-style guns, including pistols.

    All I am saying here is that Justica Scalia violated the principles of original intent in his decision. Original intent means we must find what the founders meant in their writing of the Constitution. However, when the founders record is unclear, this must be left to the legislatures, which is something conservatives always say.

    In this opinion, Justice Scalia denies the right of the legislature and the individual States' rights, something he and his conservative brethren have championed. However, it seems clear they champion only when it fits their needs and not has a rigorously firm philosophy of constitutional interpretation.

    Two conservative jurists have chimed in on this debate and have similar outlooks as myself. The article is at The article also includes links to the original journal articles referenced in the New York Times article.

  5. SJ,

    Sonia Sotomayor as the next supreme court justice? What say you? Does empathy have any place on the bench? Does life-story qualify you to be a judge on the highest bench in our land? Does being a woman and/or latina matter a wit? I always thought...and maybe its just my rudimentary, little nuanced view of the Constitution's description of the Supreme Court, that justices were supposed to rule on the meaning of the law...not inject their personal life experiences into the policy they are writing from the bench (Oh! Wait, I can't say that, I'm on camera and shouldn't say that. We don't write law from the bench..hehehe, wink wink!)

    Little peeved about this but didn't know if it warranted a whole new post. What do you think?