WASHINGTON — The Supreme Court today stepped into a legal fight over the use
of curse words on the airwaves. It is 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
The 2nd U.S. Circuit Court of 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. NBC is separately challenging an FCC decision that rapped the
network for airing Bono's use of the F-word during a Golden Globes awards show
The case, FCC v. Fox Television Stations, 07-582, will be argued in
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.
In the same opinion, the court also said the agency's position was probably
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."
Solicitor General Paul Clement, representing the FCC and the Bush
administration, argued that the decision "places the commission in an untenable
position," powerless to stop the airing of expletives even when children are
The FCC has pending before it "hundreds of thousands of complaints" regarding
the broadcast of expletives, Clement said. He argued that the appeals court
decision has left the agency "accountable for the coarsening of the airwaves
while simultaneously denying it effective tools to address the problem."
The appeal also argued that the FCC's explanation of its policy was well
reasoned and that the appeals court decision was at odds with the landmark 1978
indecency case, FCC
v. Pacifica Foundation, the last broadcast-indecency case heard by the
Lawyers for the networks said the old policy worked well for 30 years and
that broadcasters had no reason suddenly to allow for an explosion of
Separately, CBS is challenging a $550,000 fine the FCC imposed for the
"wardrobe malfunction" that bared Janet Jackson's breast during a televised 2004
Super Bowl halftime show. The 3rd U.S. Circuit Court of Appeals in Philadelphia
is considering whether the incident was indecent or merely a fleeting and
accidental glitch that shouldn't be punished.
The case is the second recent test of the federal government's powers to
regulate broadcast indecency. Last June, a federal appeals court in New York
invalidated the government's policy on fleeting profanities uttered over the
The new policy was put in place after a January 2003 broadcast of the Golden
Globes awards show by NBC when U2 lead singer Bono uttered the phrase "f------
brilliant." The FCC said the "F-word" in any context "inherently has a sexual
connotation" and can trigger enforcement.
The Fox programs at issue are a Dec. 9, 2002, broadcast of the Billboard
Music Awards in which singer Cher used the phrase "F---'em" and a Dec. 10, 2003,
Billboard awards show in which reality show star Nicole Richie said, "Have you
ever tried to get cow s---out of a Prada purse? It's not so f------ simple."