Wednesday, April 29, 2009


A few decades from now law students will learn (and probably laugh) that the United States Supreme Court (F.C.C. v. Fox Entertainment) again upheld the federal government's right to prohibit the speaking of certain "dirty" words on television and substantially fine those who uttered or permitted such words to be uttered. The compelling First Amendment arguments have been made and rejected. The statute and the regulations which have followed it, insofar as they prohibit "indecent language", should have been invalidated on constitutional grounds, but having failed that let's just recognize the fact that they (the statute and regulations) are silly and hypocritical-----admittedly "silly and hypocritical" are hardly profound legal arguments.

The underlying presumption of the legislation is to shield children from such language. The fact is that unless children are confined to the house and prohibited from reading books or magazines, they will be exposed to these words elsewhere and often. The networks do not provide a "safe haven". Please understand. I am not an expletive advocate. I do not swear except for an occasional excited excrement utterance on the golf course; I never swore in front of my children and did not and do not want them to swear. But what I find silly and hypocritical is the fact that every day and all day on television at least one hundred persons are murdered, shot, stabbed, robbed, beaten, strangled or mutilated, and all of these acts are depicted in visual form. But what is it that we seek to protect our children from: WORDS of a sexual or excretory origin. The Justices of the Supreme Court cannot bring themselves to actually use the words in their opinions! Why, because of all of those 5 year olds out there waiting and rushing to read those slip opinions from the Court the moment they roll off the presses?

Assuming any harm can be caused by watching television (a concept much disputed), how can the fear that children hearing "curse" words may repeat them be greater than the worry that they might copy the violence on television? Although I believe that neither should be prohibited, given the choice, if children are going to emulate television, I would prefer they say "shit", rather than kill somebody.

Wednesday, April 22, 2009


Former officials of the Bush Administration and its defenders respond to criticism of its torture policies (or as they are wont to call them "enhanced interrogation") by invariably claiming as justification that no attacks have occurred since 9/11. That contention reminds me of the old joke about the New York woman who sends her husband to the psychiatrist because he is always snapping his fingers. When the psychiatrist asks him why he constantly snaps his fingers, he says: "To keep the elephants away." The psychiatrist responds by saying that there are no elephants in New York. Whereupon the patient responds: "See it is working!" The Bush Administration tortured; there were no further attacks; ergo, according to them, torture works!

Although the general consensus among the experts is that torture does not provide reliable information, former Vice President Dick Cheney makes veiled suggestions that if only President Obama would declassify certain documents the practical value of torture would immediately become evident. And I ask this question in response: Since when do we judge violations of the law or the Constitution based upon whether or not those violations produce some benefit? I can think of any number of constitutional violations that would or could produce benefits-----the illegal search of thousands of homes and the seizure of illegal guns could save thousands of lives; sentencing persons to prison without the benefits of trial or appeal would save hundreds of millions of dollars; coercing confessions would save investigative time and expense, etc.---you get the picture. "See, it works" (even if true) is not the underpinning of the Rule of Law.

Torture is illegal and immoral, and no risk/benefit analysis can make it either legal or moral.