Digitus Impudicus: The Middle Finger and the Law - Wired

1446 University of California, Davis [Vol. 41:1403
The Second Circuit held that the FCC’s reasoning for the policy
change was insufficient and remanded the case to the FCC. 322 In
evaluating the FCC’s asserted reasoning behind the shift in policy, the
court rejected both the FCC’s “first blow” theory 323 and the FCC’s
argument that one cannot distinguish between a word being used as
an expletive or as a literal description of sexual or excretory
functions. 324 The court concluded that the FCC had failed “to provide
a reasoned explanation for why a single, isolated expletive now should
fit within the articulation of that test set forth in Golden Globes [II],” 325
and suggested in dicta that any additional reasoning provided by the
FCC probably will not “adequately respond to the constitutional and
statutory challenges raised by the Networks.” 326
The cases of Golden Globes II and Saving Private Ryan exist at
opposite ends of the spectrum — one involving a controversial
musician using the f-word during a live broadcast of an awards show,
the other involving a graphic but truthful depiction of the horrors of
war. Because it is exceedingly difficult, if not impossible, for
broadcasters to determine how the Commission would rule on a case
that falls between these two examples, 327 broadcasters take no chances
when it comes to the middle finger gesture. They will sometimes
allow “references and indirect allusions” to the gesture, 328 but they will
322 See id. at 458, 467.
323 Id. at 457-59 (noting that FCC argued that regulation of fleeting expletives is
proper because to argue that viewer “may avoid further offense by turning off the
radio when he hears indecent language is like saying that the remedy for an assault is
to run away after the first blow”).
324 Id. at 459 (“Bono’s exclamation that his victory at the Golden Globe Awards
was ‘really, really fucking brilliant’ is a prime example of a non-literal use of the ‘F-
Word’ that has no sexual connotation.”).
325 Id. at 460.
326 Id. at 467.
327 See infra notes 332-33 and accompanying text (quoting broadcaster and
television writer who expressed uncertainty about predicting FCC’s position on
indecency).
328
LOHEED ET AL., supra note 33, at 55; see also supra note 266 (discussing episode
of popular sitcom Seinfeld in which one character believes that people are giving him
the finger); see also Friends: The One with Joey’s New Girlfriend (NBC television
broadcast Oct. 30, 1997), available at http://www.twiztv.com/cgi-bin/friends.cgi?
episode=http://dmca.free.fr/scripts/friends/season4/friends-405.htm (noting that
Season 4, episode 5 contained gesture simulating the middle finger, and consisting of
one of main characters, Ross, pounding his backwards fists together). When asked
what the gesture meant, Ross’s sister, Monica, responded, “It’s this dumb thing that
Ross made up ’cause he was trying to fool our parents. It’s a way of giving the finger,
without actually having to give it. I remember I cried the night you made it up, ’cause
it was the first time that I realized that I was actually cooler than my older brother.”