By Robert Barnes
Washington Post Staff Writer
Wednesday, April 29, 2009
The Supreme Court said yesterday that the Federal Communications Commission may penalize even the occasional use of certain expletives on the airwaves but left for another day the question of whether such a policy is constitutional.
The court's narrow ruling said the FCC -- prompted by Cher's use of the F-word during a 2002 live broadcast and similar remarks by what Justice Antonin Scalia called "foul-mouthed glitteratae from Hollywood" -- was justified in changing its policy in 2004 to fine broadcasters up to $325,000 every time certain words are allowed on the air.
"The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children," Scalia wrote for the five-member conservative majority.
Fox Television Stations and other networks had challenged FCC's actions under the Administrative Procedure Act. They said the agency did not adequately explain why it changed its policy, which previously held that one-time utterances of expletives did not constitute a violation of FCC rules.
The networks also challenged the rule under the First Amendment, but, like the U.S. Court of Appeals for the Second Circuit in New York, the Supreme Court did not rule on the question of constitutionality.
"Whether [the policy] is unconstitutional will be determined soon enough, perhaps in this very case," Scalia wrote in sending the case back to the appeals court. In the meantime, any suppressed "references to excretory and sexual material surely lie at the periphery of First Amendment concern."
The Parents Television Council, which had strenuously lobbied the commission to adopt the tougher stance, called the ruling "an incredible victory for families." It called on the FCC to "use today's opinion to . . . rule on the merits of the tens of thousands of indecency complaints currently awaiting review at the Commission."
Fox said it was disappointed but "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."
Justices Clarence Thomas, who aligned with the majority, and Ruth Bader Ginsburg, who dissented, expressed constitutional concerns. Thomas said he was "open" to reviewing the court's decisions that gave the FCC constitutional authority to police the airwaves, and Ginsburg said there is "no way to hide the long shadow the First Amendment casts over what the commission has done."
The lingering constitutional question and instability at the FCC make it unclear how the commission will react to the decision. Two seats on the five-member agency are empty, and Julius Genachowski, President Obama's nominee to head the FCC, has not been confirmed by the Senate. Genachowski seems not to take as high an interest in violations of indecency rules as the previous chairman, Kevin Martin, who made the crackdown a priority.
But Jessica Zufolo, an analyst at the research firm Medley Global Advisors, said Genachowski will hear from members of Congress who strongly support rules on broadcast indecency.
"Congress is very buillish on upholding the FCC's indecency rules, so we expect a tremendous amount of pressure on the FCC in the aftermath of this decision," Zufolo said.
Chief Justice John G. Roberts Jr. joined Justices Anthony M. Kennedy, Samuel A. Alito Jr., Thomas and Scalia in the majority that upheld the FCC's action in the case, FCC v. Fox Television Stations. Six of the nine justices wrote separate, occasionally biting opinions to explain their decisions and criticize the others.
The court made it through an hour of oral arguments in the fall and yesterday's decision announcement without using the offending words. But Scalia yesterday recounted some of the events that led to the FCC's change of policy by substituting what he said "we will call the F-word and the S-word."
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.
Those and other incidents -- such as Janet Jackson's exposed breast during the 2004 Super Bowl halftime show, not an issue in this case -- outraged the public.
But the appeals court struck the agency's toughened rules, saying it had failed to "articulate a reasoned basis" for the policy change.
Scalia and the majority disagreed, saying the commission was fulfilling its mission from Congress to patrol the airwaves for descriptions or depictions of sexual or excretory functions, whether used literally or as expletives.
"Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives," Scalia wrote.
But Justice Stephen G. Breyer said the agency does not have "the freedom to change major policies on the basis of nothing more than political considerations or even personal whim." His dissent was joined by Justices John Paul Stevens, David H. Souter and Ginsburg.
It has been 30 years since the court considered the afternoon radio broadcast of comedian George Carlin's "Filthy Words" monologue and decided that the government can police the nation's airwaves without violating the First Amendment.
Staff writer Cecilia Kang contributed to this report.