As more Americans receive TV and radio programming uncensored via cable, satellite and the Internet, the Supreme Court said Tuesday that traditional broadcasters can be required to offer families a “safe haven” from foul language.
In a 5-4 decision, the court upheld the government’s crackdown on “fleeting expletives” and said broadcasters could face heavy fines for airing the F-word or the S-word even once during prime time.
Justice Antonin Scalia said the strict ban on profanity on TV and radio was justified because of the “coarsening of public entertainment in other media, such as cable.” He also spoke of the “foul-mouthed glitteratae from Hollywood” whose use of four-letter words on live TV shows triggered the crackdown.
The ruling is a major setback for the broadcast industry. However, the court did not rule on whether the strict policy against broadcast “indecency” violated the 1st Amendment’s protection for free speech. Instead, the justices sent the case back to a federal appeals court in New York to consider that issue.
“This means another year or two of uncertainty,” said Andrew Jay Schwartzman, a media lawyer in Washington who had urged the court to throw out the fleeting expletives rule.
For now, the ruling means broadcasters -- large or small -- could be fined as much as $325,000 for sending out a single expletive over the public airwaves, even if it was unintended.
The Federal Communications Commission, led by Bush administration appointees, announced the crackdown in 2004 in response to a wave of public complaints.
Among the incidents that caused a stir was a December 2002 appearance by Cher, who upon receiving an award used the F-word to disparage her critics: “So . . . ‘em. I still have a job and they don’t.” The live broadcast on Fox was seen and heard by about 2.5 million minors, Scalia said.
On NBC’s 2003 broadcast of the Golden Globe Awards, Bono used an expletive, exulting that his award was “really, really . . . brilliant.”
Nicole Richie managed to use the F-word and the S-word in a two-sentence exchange on another Fox program.
Federal law has long prohibited the broadcast of “any indecent” language, and the FCC decided it would deem any use of the F-word or the S-word to be indecent.
Congress in 2006 voted to increase by 10 times the fines for indecent broadcasts. Not long afterward, the FCC imposed a $550,000 fine on CBS for its broadcast of the Super Bowl half-time show in which Janet Jackson’s breast was briefly exposed.
Fox and the other major broadcasters sued to block the FCC from enforcing its strict policy. They argued that the change was not justified and was unconstitutional.
(The Supreme Court had ruled once before on broadcast indecency. In 1978, the justices upheld a fine against a California radio station for airing George Carlin’s “Seven Dirty Words” monologue in midafternoon. But it was unclear whether the use of a single expletive could be deemed indecent.)
The U.S. appeals court in New York ruled that the FCC’s tougher policy was unjustified and unwarranted. But the Supreme Court reversed the ruling and upheld the policy in FCC vs. Fox TV.
Scalia said the FCC “could reasonably conclude that the pervasiveness of foul language and the coarsening of public entertainment in other media . . . could justify more stringent regulation of broadcast programs.” He added that “technological advances have made it easier to bleep out offending words.”
Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined Scalia. But the relatively narrow ruling may have papered over a deeper split among the court’s conservatives over the constitutionality of regulating broadcasters.
For his part, Scalia said he did not see a problem. “Any chilled references to excretory or sexual material surely lie at the periphery of 1st Amendment concern,” he said. But Thomas added a concurring opinion that voiced concern about the “deep intrusion in the 1st Amendment rights of broadcasters.”
The court’s four dissenters said the FCC had not justified its zero-tolerance policy for expletives. Justice John Paul Stevens also questioned the notion that the expletives in question referred to sex or excrement.
“As any golfer who has watched his partner shank a short approach knows, it would be absurd to [say] that the resultant four-letter word . . . describes sex or excrement and is therefore indecent,” he wrote.
He also found it ironic that the FCC patrols the airwaves for these words while TV viewers are constantly asked “whether they too are battling erectile dysfunction or are having trouble going to the bathroom.”
Acting FCC Chairman Michael Copps, a Democrat, lauded the ruling as “a big win for families.”
Sen. John D. Rockefeller IV (D-W.Va.), who chairs the panel that oversees the FCC, also applauded the decision.
“We must be doing more, not less, to give the FCC and parents all across America the resources they need to protect their children from indecent programming,” he said.