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. (By Gerald Martineau -- The Washington Post)
Buy Photo

The court's last substantial decision on broadcast indecency came in 1978, when justices in FCC v. Pacifica Foundation ruled against the broadcast of Carlin's monologue about words that he said could not be spoken on the airwaves. The ruling said the federal government has the authority to police over-the-air radio and television broadcasts for "patently offensive" material of a sexual or excretory nature from 6 a.m. to 10 p.m., when children are mostly likely to be in the audience. (The FCC has no authority over cable and satellite radio and TV.) But the opinion by Justice John Paul Stevens for the splintered court stressed the narrowness of the decision and added: "We have not decided that an occasional expletive in either setting would justify any sanction."

The FCC maintained the same policy until singer Janet Jackson's breast was exposed during halftime of the 2004 Super Bowl. The FCC was inundated with hundreds of thousands of complaints not just about that but also about declining standards of language on the airwaves, and the commission revised its policy.

In the incidents in the case, FCC v. Fox Television Stations, Cher delivered a retort to her critics during a Billboard Music Awards broadcast: "So, [expletive] 'em. I still have a job, and they don't." Similarly, U2 lead singer Bono used the word on a Golden Globes award show, describing his award as "really, really [expletive] brilliant."

The FCC says technology makes it easy for networks to avoid such gratuitous use of obscenity. The networks argue that the FCC has exceeded its authority when the word does not convey a sexual message, and the opinion from the appeals court noted NBC's argument that "even the top leaders of our government have used variants of these expletives in a manner that no reasonable person would believe referenced 'sexual or excretory organs or activities.' " It referred to a statement Vice President Cheney made on the Senate floor to Sen. Patrick J. Leahy (D-Vt.).

The broadcast world has also changed dramatically since the 1978 Pacifica decision. More than 85 percent of all U.S. television viewers pay for television, either cable or satellite, and critics of the FCC policy say regulation should be up to the parent, not the government.

But Tim Winter, president of the Parents Television Council, whose Web site has made it easy for parents to complain to the FCC, said in a statement that "broadcasting is every bit as pervasive today as it was at the time of the Pacifica decision."

"Broadcasters are only given a license to use the airwaves in the public interest and convenience," Winter continued. "The American people have a reasonable and time-honored expectation that the airwaves will be used in a manner that is beneficial to them."

The case will be argued in the fall.