Supreme Court Takes Up Case of Use of Profanity on TV

By Jerry Markon
Washington Post Staff Writer
Wednesday, November 5, 2008

It's not every day that a top lawyer for the Bush administration, standing before the black-robed justices of the Supreme Court, invokes the specter of "Big Bird dropping the F-bomb on Sesame Street."

Yet it was that kind of morning yesterday in the august courtroom, where the justices weighed a new government policy that can punish television networks for a one-time, or "fleeting," expletive, as opposed to a stream of profanities. The case came about after singer Cher dismissed her critics by saying "[expletive] 'em" during a live awards show in 2002, and celebrity Nicole Richie told millions of viewers in 2003: "Have you ever tried to get cow [expletive] out of a Prada purse? It's not so [expletive] simple."

The justices made their usual majestic entrance, and the argument began with the typically sober discussion of weighty legal issues. But the lawyers were soon jumping through verbal hoops to avoid saying the words at issue, trying everything from "these words" to "expletives," "swearing," "the F-word," "the F-bomb" and "freaking."

Chief Justice John G. Roberts Jr. debated with a lawyer for Rupert Murdoch's Fox network, which aired the Cher and Richie remarks, over whether such words inherently denote offensive "sexual or excretory activities" -- the definition the Federal Communications Commission used to cite Fox for broadcasting indecent material.

"Why do you think the F-word has shocking value or emphasis or force?" Roberts asked. "Because it is associated with sexual or excretory activity."

The tension in the crowded courtroom gave way to laughter when 88-year-old Justice John Paul Stevens asked whether the FCC would sanction a broadcaster if the indecent remark "was really hilarious, very, very funny." Solicitor General Gregory G. Garre said the commission would, along with "whether it's shocking, titillating, pandering."

"Bawdy jokes are okay, if they're really good," Justice Antonin Scalia cracked, to more laughter.

Stevens also asked whether the word "dung" would be indecent (Garre said probably not) and Justice Stephen G. Breyer added that during live television "you're dealing with a cross section of humanity, and my experience is that some sections of that cross section swear."

But nary a curse word was heard during a debate that soon turned to the serious issues at hand. The case capped a battle over what can be said on radio and television, part of a broader culture clash between those who see increased profanity on the airwaves as harming children and debasing the nation's values and others who believe the government's crackdown threatens free speech and artistic expression.

The government has imposed decency standards on broadcasters since the 1920s, and currently the FCC prohibits the broadcast of sexual or excretory content on radio and television between 6 a.m. and 10 p.m., when children are most likely to be in the audience.

Even with those rules, there have been periodic flare-ups over what can be said on-air. The issue heated up after the split-second television exposure of singer Janet Jackson's breast during the 2004 Super Bowl halftime show.

Hundreds of thousands of viewers complained, prompting the FCC to change a long-standing policy that only repeated use of on-air expletives would be punished. The commission didn't fine Fox for the Cher and Richie incidents but made it clear that further "fleeting" obscenities could draw punishment.

Television networks protested, but Congress in 2006 raised the maximum indecency fine from $32,500 to $325,000.

Fox filed suit, arguing that the FCC's policy change was arbitrary and that its First Amendment rights had been violated. A federal appeals court in New York agreed, issuing a 2 to 1 decision last year that questioned whether the FCC has the right to police airwaves for offensive language. (The FCC has no authority over cable and satellite radio and TV.)

The Bush administration petitioned the Supreme Court, which agreed to hear its first substantial case on broadcast indecency since a 1978 decision that said comedian George Carlin's "seven dirty words" monologue was indecent. That narrow decision, written by Stevens, spelled out that the court had not decided the issue of "an occasional expletive."

Garre urged the justices to back the FCC, saying that upholding the appellate ruling could lead to "a world where the networks are free to use expletives . . . 24 hours a day," including, he said, the Big Bird "F-bomb" scenario.

Carter Phillips, an attorney for Fox, questioned what he called the FCC's shifting definitions of indecency and raised the specter of stations being afraid to broadcast live events for fear that someone might curse. Recently, he said, a Vermont public television station excluded a political candidate from a live debate because he had sworn during a previous public forum.

But Phillips ran into resistance from several conservative justices, especially Scalia, who decried what he called the "coarsening" of broadcast television.

A recent study by the Parents Television Council found that the use of expletives has nearly doubled in prime-time broadcast television since 1998, and the council's president, Tim Winter, said that without Supreme Court intervention "we're going to see a tidal wave of ever more graphic material."

But Marjorie Heins, a lawyer for the American Civil Liberties Union and other organizations that filed a brief supporting Fox, called on the FCC to let broadcasters make their own judgments.

"There's always a risk in a society that values free expression that someone will be offended," she said.

Staff writer Frank Ahrens contributed to this report.

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