WASHINGTON — Brief swear words might cost broadcasters a bundle now under a much-anticipated ruling that the Supreme Court issued Tuesday.
By 5-4, the court upheld the Federal Communications Commission's authority to regulate "fleeting expletives." These can be passing uses of what the court's conservative majority delicately termed "the F- and S-words," among other things.
"Even isolated utterances can be made in pander(ing) . . . vulgar and shocking manners," Justice Antonin Scalia wrote for the majority. "It is surely rational, if not inescapable, to believe that a safe harbor for single words would likely lead to more widespread use of the offensive language."
Even so, the court's ruling was limited. Though the majority agreed that the FCC had acted within its authority, the justices stopped short of determining outright whether a ban on fleeting expletives violates the First Amendment. This crucial question now will be returned to the New York-based 2nd U.S. Circuit Court of Appeals.
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"We are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts," Fox Television Stations declared in a statement. Fox was the object of the FCC action.
Chief Justice John G. Roberts and Justices Samuel Alito, Anthony Kennedy and Clarence Thomas joined in the majority opinion.
Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer dissented, arguing in part that regulators were reading too much indecent meaning into the banned words.
"Even if the words that concern the court in this case sometimes retain their sexual or excretory meaning, there are surely countless instances in which they are used in a manner unrelated to their origin," Stevens wrote in one of three dissenting opinions. "These words may not be polite, but that does not mean they are necessarily indecent."
Ginsburg added that "words unpalatable to some may be commonplace for others, the stuff of everyday conversations," while Breyer stressed that the FCC had failed to explain adequately the reason for a change in policy concerning fleeting expletives.
The case called FCC v. Fox Television Stations arose out of several incidents. In one, rock singer Bono from the group U2 expressed his pleasure at a nationally broadcast Golden Globe Awards show. As Scalia's opinion reported it:
"This is really, really f---ing brilliant," Bono said.
Federal regulators determined that Bono's use of the infamous gerund was "patently offensive" because "its use invariably invokes a coarse sexual image." This marked a change from previous FCC determinations that a fleeting curse word wouldn't be disciplined.
During the nationally televised 2002 Billboard Music Awards, singer Cher likewise exclaimed "f--- 'em" when dismissing her many critics. The next year, celebrity Nicole Richie declared that it was "not so f---ing simple" to clean "s--- out of a Prada purse."
In support of tighter speech regulations, Scalia noted that "approximately 2.5 million minors" witnessed each of the Billboard Music Awards shows in question.
Although the FCC declined to fine the broadcasters in these instances, the new policy concerning fleeting expletives drew sharp criticism from free-speech advocates. In part, they charged the regulators with violating administrative requirements, a charge that the court's majority rejected Tuesday.
"The commission's new enforcement policy and its order finding the broadcasts actionably indecent were neither arbitrary nor capricious," Scalia wrote.
Scalia and the conservative majority added that it was "entirely rational" for the FCC commissioners to determine that "it made no sense to distinguish between literal and nonliteral uses of offensive words." The FCC's decision not to fine Fox after violation of the new indecent-word policy was further evidence that regulators weren't arbitrarily punishing broadcasters, Scalia stressed.
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