WASHINGTON, D.C. — For the first time in 30 years, the U.S. Supreme Court has agreed to rule on the government’s standards for language decency on the public airwaves. At issue is the Federal Communications Commission’s policy that even a “fleeting” bit of profanity uttered during a prime-time radio or television broadcast is subject to punishment.The lawsuit that precipitated the case was brought by Fox Broadcasting after it received an FCC reprimand for single four-letter words spoken by Cher and Bono during live awards shows in 2002 and 2003. In June 2007, the U.S. Court of Appeals for the 2nd Circuit in New York sided with Fox, calling the FCC policy — which represented a substantial reversal of an earlier policy — “arbitrary and capricious” and saying the policy violated First Amendment protections.
The court agreed to hear the case at the urging of the Bush administration, which called the appellate court’s ruling “untenable” because it favored free speech over the protection of children.
In response to the appellate court’s ruling, FCC Chairman Kevin Martin said, “I continue to believe we have an obligation… to enforce laws restricting indecent language on television and radio when children are in the audience.”
Fox, on the other hand, took a different stand.
“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,” Fox Broadcasting spokesman Scott Grogin said in a prepared statement.
The Supreme Court’s last ruling about indecent speech left broadcasters with a pretty clear idea of what could and couldn’t be said during prime time. In FCC v. Pacifica Foundation, decided in 1978, the court notoriously outlawed as “patently offensive” comedian George Carlin’s “seven dirty words” after they were spoken during a midday radio broadcast. However, the decision was designed to be open-ended, allowing that “an occasional expletive… would [not] justify any sanction.”
Today’s broadcasters, however, feel set adrift by the shifting tides of FCC governance. In 2004, a number of ABC affiliates declined to air the movie Saving Private Ryan because of the film’s reliance on profanity for historical and artistic accuracy. The affiliates believed airing the movie would set them up for stiff fines from the FCC. After the broadcast, the FCC announced it would not have fined the stations because the words were integral to the movie’s authenticity and therefore were allowable under current FCC guidelines.
The commission had redefined its standards only recently at that point, after an infamous “wardrobe malfunction” exposed singer Janet Jackson’s breast during a Super Bowl halftime performance in January. The expansion of the definition of what constituted an offense was based in part on the availability of technology that can assist broadcasters in preventing spontaneous dialogue slips, the FCC said.
