Supreme Court to Review FCC Ban on Profanity

Law students Hayley Tozeski, left, and Jacqueline Ambrose wait yesterday for admission to today's D.C. gun hearing.
Law students Hayley Tozeski, left, and Jacqueline Ambrose wait yesterday for admission to today's D.C. gun hearing. (By Gerald Martineau -- The Washington Post)
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By Robert Barnes and Frank Ahrens
Washington Post Staff Writers
Tuesday, March 18, 2008

The Supreme Court announced yesterday that it will rule on the government's standards for policing the public airwaves for the first time since the court agreed 30 years ago that a midday radio broadcast of comedian George Carlin's "seven dirty words" monologue was indecent.

The court will review the Federal Communications Commission's policy that even a one-time utterance of an obscene word on radio and television broadcasts during daytime and early evening hours is subject to punishment.

The lawsuit by Fox Broadcasting arose after the commission reprimanded the broadcaster for incidents in 2002 and 2003, when singer Cher and celebrity Nicole Richie, during live award shows, used variations of a vulgar four-letter word.

The reprimand came after the FCC in 2004 reversed its position and said even "fleeting" expletives exposed the network to sanctions.

But in June, the U.S. Court of Appeals for the 2nd Circuit in New York concluded the policy was "arbitrary and capricious" under the Administrative Procedure Act because the commission had "failed to articulate a reasoned basis for its change in policy." It also raised questions about First Amendment protections and sent the policy back for more work.

The Bush administration urged the Supreme Court to take the case on appeal, saying the lower court's ruling had left the FCC in an "untenable" position between protecting children and protecting freedom of speech.

"The court of appeals appears to have put the FCC to a choice between allowing one free use of any expletive no matter how graphic or gratuitous, or else adopting a (likely unconstitutional) across-the-board prohibition against expletives," Solicitor General Paul D. Clement said in his brief to the court.

FCC Chairman Kevin J. Martin welcomed the court's intervention, saying, "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 said it is looking forward to demonstrating the "arbitrary nature" of the FCC's indecency enforcement.

"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 statement.

Television and radio stations say the FCC's shifting standards have left them without guidance on what they can air without fear of an indecency fine.

For instance, in 2004, several ABC affiliates refused to air the World War II epic "Saving Private Ryan," for fear that the film's profanities would bring an FCC fine. After the movie aired, the FCC said it would not have fined the stations, saying the profanities were part of the context of the historical film.

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