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Court to look at FCC policy on broadcast profanity

Tuesday, March 18, 2008

WASHINGTON -- The Supreme Court on Monday stepped into a legal fight over the use of curse words on the airwaves, the high court's first major case on broadcast indecency in 30 years.

The case concerns a Federal Communications Commission policy that allows for fines against broadcasters for so-called "fleeting expletives," one-time uses of the F-word or its close cousins.

Fox Broadcasting Co., along with ABC, CBS and NBC, challenged the new policy after the commission said broadcasts of entertainment awards shows in 2002 and 2003 were indecent because of profanity uttered by Bono, Cher and Nicole Richie.

A federal appeals court said the new policy was invalid and could violate the First Amendment.

No fines were issued in the incidents, but the FCC could impose fines for future violations of the policy.

The case before the court technically involves only two airings on Fox of the "Billboard Music Awards" in which celebrities' expletives were broadcast over the airwaves.

FCC chairman Kevin Martin said Monday that he was pleased with the court's decision.

"The Commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility," he said in a prepared statement. "I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience."

Fox Broadcasting Co. was also pleased. The decision will "give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace where parents have access to a variety of tools to monitor their children's television viewing," company spokesman Scott Grogin said in a prepared statement.

The FCC appealed to the Supreme Court after the 2nd U.S. Circuit Court of Appeals in New York nullified the agency's enforcement regime regarding "fleeting expletives." By a 2-1 vote, the appeals court said the FCC had changed its policy and failed to adequately explain why it had done so.

The appeals court, acting on a complaint by the networks, nullified the policy until the agency could return with a better explanation for the change.

The court rejected the FCC's policy on procedural grounds, but was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."

The case will be argued in the fall.


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