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Supreme Court Rules that Government Can Fine for 'Fleeting Expletives'

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First, there was Cher, who responded to her critics after winning an award at the 2002 Billboard Music Awards by saying, to use Scalia's alternative, "So f'em." Celebrity Nicole Richie complained on air that getting the S-word out of a Prada purse was not so "f'ing simple," Scalia recalled.

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Those and other events -- such as Janet Jackson's exposed breast during a Super Bowl halftime, not an issue in this case -- outraged the public and groups such as the Parents Television Council, which makes filing a complaint as easy as clicking on the group's Web site.

A panel of the appeals court struck the new rules, though. It said the FCC had violated the Administrative Procedures Act by failing to "articulate a reasoned basis" for the policy change.

Scalia and the majority disagreed, saying the ban on "descriptions or depictions of sexual or excretory functions" was reasonable whether they were used literally or as expletives. He said the agency was carrying out a responsibility from Congress to patrol the airwaves for words it considers harmful to children.

"It suffices to know that children mimic the behavior they observe -- or at least the behavior that is presented to them as normal and appropriate," Scalia wrote. "Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives."

The dissenters disagreed that the agency had adequately explained its decision. "The FCC's answer to the question, 'Why change?' is, 'We like the new policy better,' wrote Justice Stephen G. Breyer, who was joined by Justices John Paul Stevens, David H. Souter and Ginsburg.

"This kind of answer might be perfectly satisfactory were it given by an elected official. But when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient."

In all, six of the nine justices wrote opinions to explain their decisions.

It has been 30 years since the court considered the afternoon radio broadcast of the late comedian George Carlin's "Filthy Words" monologue and decided that the government can police the nation's airwaves without violating the First Amendment.

In FCC v. Pacifica Foundation, the court ruled that because of its "uniquely pervasive presence in the lives of all Americans," broadcasting has "the most limited First Amendment protection" and government has the right to restrict broadcast material in order to protect children who might be watching and listening.


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