Court: FCC ‘fleeting expletive’ rule OK — for now

By MARK SHERMAN
Associated Press Writer
WASHINGTON — The Supreme Court deleted expletives left and right Tuesday in narrowly upholding a government policy that threatens broadcasters with fines over the use of even a single curse word on live television.
But in six separate opinions that used none of the offending words over 69 pages, the justices suggested they could yet find the Federal Communications Commission’s "fleeting expletives" policy unconstitutional. The court said a federal appeals court should weigh whether it violates First Amendment guarantees of free speech.
The precipitating events were live broadcasts of awards shows in which Bono, Cher and Nicole Richie — Justice Antonin Scalia referred to the latter two as "foul-mouthed glitteratae from Hollywood" — let slip or perhaps purposely said variations of what Scalia called "the F- and S-words."
By a 5-4 vote, the court threw 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 crackdown and had returned the case to the agency for a "reasoned analysis" of its the tougher policy on indecency.
The commission appealed to the Supreme Court instead.
Scalia, writing for the court, said the FCC policy, adopted in 2004, was "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 but said it was "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."
The FCC toughened 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.
Under the new FCC rule, some words are deemed to be so offensive that they always evoke sexual or excretory images. So-called fleeting expletives were not treated as indecent before the change.
The policy essentially excludes news programming and some other broadcasts, including ABC’s airing of "Saving Private Ryan" in 2004.
In the short term, the decision probably will lead the justices to reverse a similar appeals court ruling in the FCC’s effort to fine CBS Corp. over Janet Jackson’s wardrobe malfunction at the 2004 Super Bowl. That case has been pending at the high court since November.
The federal appeals court in Philadelphia threw out a $550,000 indecency fine against CBS over Jackson’s breast-baring episode during the halftime show. The court said the incident lasted nine-sixteenths of a second and should have been regarded as "fleeting."
Tim Winter, president of the Parents Television Council advocacy group, said he was thrilled by Tuesday’s decision. Winter said he hopes the FCC now takes up "tens of thousands" of pending indecency complaints.
The FCC said it is reviewing the ruling before deciding how to proceed on pending complaints.
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 he 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, broadcast TV was the only television 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 profanity referring to sex or excrement is 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 profanity 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.