Los Angeles Times
WASHINGTON -- The Supreme Court said Tuesday that TV viewers should not be hit with the "F-word" or the "S-word" during prime-time broadcasts, upholding the government's power to fine broadcasters for airing a single expletive.
In a 5-4 decision, the justices said federal law has long prohibited the broadcast of "indecent" language, and they said the Federal Communications Commission had ample authority to crack down on what Justice Antonin Scalia called the "foul-mouthed glitteratae from Hollywood."
He was referring to several incidents that triggered the FCC's crackdown.
When entertainer Cher was given a lifetime achievement award at the Billboard Music Awards in 2002, she said it proved her critics wrong. "So, f... 'em," she said. The broadcast aired live on the Fox network and was viewed by about 2.5 million minors, Scalia said.
The FCC cited similar comments by Bono and Nicole Richie during entertainment industry award shows.
In its new policy, the FCC said a single "fleeting expletive" could trigger fines for the network and all the local broadcasters who aired the show.
Fox and the other networks went to court, arguing that this change in policy was unjustified and unwarranted.
But the Supreme Court upheld the new policy Tuesday in FCC v. Fox Television and confirmed that the government retains broad power to police the airwaves.
"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 said.
Although the ruling is a defeat for broadcasters, they can urge the FCC to revise its policy, now that President Barack Obama is appointing new commissioners. They also could urge Congress to revise the applicable law. The court also said the broadcasters can go back to the federal appeals court in New York and argue that the policy violates the First Amendment.
Andrew Jay Schwartzman, president and chief executive of the Media Access Project, said groups such as his that support a freer policy would pursue the matter in the courts.
"Today's decision is extremely disappointing," he said. "We remain hopeful that the FCC's restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the court chose not to confront today."
It was the court's first ruling on "indecency" on the airwaves in three decades. In 1978, the justices said George Carlin's "Seven Dirty Words" monologue could be banned from the airwaves during midday broadcasts. It had remained unclear whether a single expletive could trigger an FCC fine.
Tuesday's decision, however, did not deal with cable TV, satellite broadcasts or the Internet, all of which can escape federal regulation because they do not rely on the public airwaves.
The broadcasters had argued that they should not be subject to rigid government rules on indecency, considering that most Americans watch TV on cable and satellite systems that can escape regulation.
Although Tuesday's decision dealt with foul words, it probably will revive a $550,000 FCC fine over the "wardrobe malfunction" during the Super Bowl broadcast in 2004 that showed a fleeting image of Janet Jackson's breast.
Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy, Justice Clarence Thomas and Justice Samuel A. Alito joined Scalia's opinion.
The four dissenters said the FCC had not explained how a "single fleeting use" of an expletive could justify large fines, particularly if a network had no intention to air the language. Often, the words were uttered by guests on live broadcasts.
Since the FCC crackdown, most broadcasters have been vigilant in making sure expletives are deleted.