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Supreme Court: FCC fleeting expletive rule OK for now

Wednesday, April 29, 2009

WASHINGTON -- The Supreme Court ruled narrowly Tuesday in favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television, yet stopped short of deciding whether the policy violates the Constitution.

In six separate opinions totaling 69 pages, the justices signaled serious concerns about the constitutionality of the Federal Communications Commission's "fleeting expletives" policy, but called on a federal appeals court to weigh whether it violates First Amendment guarantees of free speech.

By a 5-4 vote, however, the court did throw out a ruling by the 2nd U.S. Circuit Court of Appeals in New York. That court had found in favor of a Fox Television-led challenge to the FCC policy and had returned the case to the agency for a "reasoned analysis" of its tougher line on indecency.

The FCC appealed to the Supreme Court instead.

Justice Antonin Scalia, writing for the court, said the FCC policy, adopted in 2004, is "neither arbitrary nor capricious."

Acting FCC Chairman Michael Copps called the decision "a big win for America's families." Copps said the "decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves. "

Fox expressed disappointment with the decision, but said it is "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

The FCC changed its long-standing policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

The precipitating events were live broadcasts of awards shows in which Bono, Cher and Nicole Richie let slip or perhaps purposely said variations of what Scalia called Tuesday "the F- and S-words."

Under the new FCC rule, some words are so offensive that they always evoke sexual or excretory images. So-called fleeting expletives were not treated as indecent before then.

In its last major broadcast indecency case, the court ruled 31 years ago that the FCC could keep curse words off the airwaves between 6 a.m. and 10 p.m.

Justice Clarence Thomas sided with the majority Tuesday, but nevertheless noted that the previous decision and an even earlier case "were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity."

When the court upheld the FCC regulation in 1978, television broadcasts were the only source of images available to most Americans.

Today, the Internet, cable and satellite television are in millions of homes, yet the FCC's authority extends only to broadcast television and radio, as Thomas noted.

"For most consumers, traditional broadcast media programming is now bundled with cable or satellite services," he said.

Justice Ruth Bader Ginsburg, who dissented Tuesday along with the other three liberal justices, similarly raised constitutional concerns. Ginsburg said that in a case that turns on government restriction of spoken words, "there is no way to hide the long shadow the First Amendment casts over what the commission has done."

The nub of Tuesday's ruling was whether the FCC took a reasonable course in changing its policy and concluding that curse words referring to sex and excrement are always indecent.

Scalia, joined by his four conservative colleagues, said the FCC "could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media" justified a stricter policy "so as to give conscientious parents a relatively safe haven for their children."

But Justice John Paul Stevens said in dissent that the FCC missed the mark in failing to distinguish how the offending words are used.

"As any golfer who has watched his partner shank a short approach knows," said Stevens, an avid golfer, "it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement."

Stevens also noted the frequent airing of television commercials during the prime-time hours under FCC surveillance -- advertisements which, for instance, ask viewers "whether they too are battling erectile dysfunction or are having trouble going to the bathroom."

Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy after the FCC singled out use of the words by Bono, Cher and Nicole Richie during awards programs that were aired in 2002 and 2003.

In each instance, a variation of the f-word was used either as a modifier -- as in Bono's comment that an award was "really f---ing brilliant" -- or as a metaphor, as when Cher said, "F--- 'em," to her critics.

The case is FCC v. Fox Television Stations, 07-582.


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