Supreme Court’s docket: bleeeeeep
The Supreme Court would not be recommended as the best place in this city to hear a raucous conversation that makes full use of the F-word, the S-word and assorted other vulgarities.
It is a place of decorum. Officers will firmly reprimand a visitor who errs by leaning an elbow on the next chair.
Tuesday morning may be an exception, however. While the nation focuses on the presidential election, the justices will discuss the F-word and its variants in a case that could determine whether these words will be heard more on television and radio.
The nation’s broadcasters are fighting fines imposed by the Federal Communications Commission for airing the banned words, even if inadvertently. For example, when Cher won a Billboard Music award, she said it proved her critics wrong: “People have been telling me I’m on the way out every year, right? So f- - - ‘em.” Fox TV broadcast the awards program live.
The channel’s lawyer, Carter G. Phillips, said that “unless someone tells me not to,” he will use in court the actual words that federal regulators hope to keep off the air.
But the case is much more than a swearing contest, with implications not only for broadcasters but for viewers and parents.
At issue is the future indecency standard for television and radio. Will these broadcasts remain under strict federal regulation because a mass audience that includes children may be watching? Or will a looser standard prevail, giving broadcasters and audiences more choice in what they see and hear?
The broadcasters say that the old rules are an unconstitutional infringement on free speech. Also, about 9 in 10 Americans receive TV signals via cable or satellite -- yet only the broadcast industry, because it uses public airwaves, is subject to the legal rules, which were set in a different era. That means most viewers have a menu of channels that operate under different legal rules, with cable channels largely free of government oversight.
“The court has not revisited this issue in 30 years, and we would like broadcasters to be treated the same as cable TV or the Internet,” Phillips said.
The broadcasters say federal policing and the prospect of high fines for airing banned words poses an everyday threat. “I don’t want to say all live sporting events or all live broadcasts will come to a halt, but what happens if an expletive gets on the air?” Phillips said. The FCC “can impose a huge fine on the network and on all the local stations that broadcast it.”
Parents groups counter that children should be shielded from profanity and sex on TV, and maintaining a standard of decency is a small price to pay for access to public airwaves.
“They are using the public airwaves for free. We don’t think we should have to tolerate a race to the bottom to see who can go further,” said Timothy F. Winter, president of the Parents Television Council in Los Angeles. He said he joined the group after watching TV with his young daughter and finding it offensive. The group claims more than 1 million members, who in turn have launched a wave of complaints to the FCC to protest vulgarity and sex on TV.
“As long as the law [against indecency] is on the books, we want it enforced,” Winter said. “And because of our efforts, the FCC has stepped up and enforced the law.”
Since the advent of national broadcasts on radio, it has been a federal crime to “utter any obscene, indecent or profane language” over the public airwaves. The FCC is authorized to enforce that law. At the same time, the 1st Amendment says Congress “shall make no law . . . abridging the freedom of speech.”
During the 1960s, the Supreme Court agreed that, despite the 1st Amendment, radio and TV broadcasts could be regulated because they made use of the public airwaves.
In 1978, the court narrowly upheld the FCC’s fine against a radio station for broadcasting comedian George Carlin’s “Seven Dirty Words” monologue during the afternoon. One justice called Carlin’s skit a “sort of verbal shock treatment.” However, the court’s opinion suggested that an “isolated use” of a vulgar word would not violate the law.
But four years ago, in response to complaints from the parents groups, the FCC announced a crackdown on the broadcast of expletives that described “sexual or excretory” activities. The commission said that these words were always shocking and graphic, even if used fleetingly, and that any broadcast of them could subject the network to fines of more than $325,000.
“Any use” of the F-word “inherently has a sexual connotation,” the FCC said. It also banned the use of the word “bulls- - - -er” on the grounds that it “invariably invokes a coarse excretory image.”
Broadcast industry leaders called this conclusion shocking. They said it was ridiculous to say that Cher’s emphatic rebuke to her critics was an invitation to sex.
The FCC also cited singer Bono, who exulted upon winning a Golden Globe that the award was “really, really f- - -ing brilliant!”
The FCC also has seemed inconsistent in following its own rule.
Its members made an exception for the broadcast of “Saving Private Ryan,” because the soldiers’ coarse language on the D-day beaches was integral to the story, but it refused a similar exception for coarse language from the musicians profiled on Martin Scorsese’s TV documentary “The Blues.”
Congress has strongly supported the FCC’s crackdown, with lawmakers voting to raise the fines for violations after singer Janet Jackson’s breast was briefly exposed during the Super Bowl halftime show in 2004.
CBS was fined $550,000 for that incident, but the network has won an appeal, though the case is still pending.
Last year, the broadcast industry won a tentative victory in its fight with the FCC when the U.S. Court of Appeals in New York blocked the new policy against “fleeting expletives” on the grounds that it was arbitrary, vague and possibly unconstitutional.
The Supreme Court could rule narrowly on whether the FCC had adequately explained its shift in policy, or broadly on whether the 1st Amendment limits the government’s power to police TV and radio.
The justices will hear the government’s appeal Tuesday in FCC vs. Fox TV.