When Does F*** Not Mean F***? FCC V. Fox Television Stations and a Call for Protecting Emotive Speech‪.‬

I. INTRODUCTION Almost since the beginning or its First Amendment jurisprudence, the Supreme Court of the United States has had a love-hate relationship with words. Some words, the Court said early in its free-speech history, are undeserving of First Amendment protection because, in balance, they harm society or do not contribute to the search for truth. (1) The very utterance of such words would "inflict injury or tend to incite an immediate breach of the peace." (2) Other words deserve extra protection because they are "the essence of self-government." (3) These words constitute "speech that matters." (4) For the most part, the Court has been able to delineate a structure to this "hierarchy of First Amendment values," (5) but whether the application of the First Amendment to that structure has been effective is another question. One critic noted, for example, that the Court's use of the theory that "not all speech is of equal First Amendment importance" (6) "has been marked by vacillation and uncertainty." (7) Clearly, the Court's dealings with nontraditional language and conduct can be so categorized. Whether the issue is the discussion of words that cannot be uttered over the airwaves, (8) nude dancers in Pennsylvania, (9) or award-winning musicians uttering profanities on television, (10) the Court has seemingly become befuddled when confronted with expression that is indecent or simply out of the ordinary. (11)