Supreme Court to Review FCC Ban on Profanity

By Robert Barnes and Frank Ahrens
Washington Post Staff Writers
Tuesday, March 18, 2008; A01

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.

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.

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