Supreme Court takes case on dirty words on TV, radio

Published 11:10 pm Monday, March 17, 2008

WASHINGTON — The Supreme Court announced Monday that it will rule on what constitutes indecency on broadcast radio and television for the first time since the court agreed 30 years ago that a midday radio broadcast of comedian George Carlin’s “seven dirty words” monologue was indecent.

The court will review the Federal Communications Commission’s policy that even a one-time utterance of an obscene word on broadcasts during daytime and early evening hours is subject to punishment.

The court could decide the Federal Communications Commission has broad power to decide what is acceptable for over-the-air broadcasts. Or the justices could conclude the First Amendment’s protection for the freedom of speech does not allow the government to punish broadcasters for an occasional vulgarity.

The lawsuit by Fox Broadcasting arose after the commission reprimanded the broadcaster for incidents in 2002 and 2003 in which singer Cher, celebrity Nicole Richie and U2 lead singer Bono, during live award shows, used variations of a vulgar four-letter word.

The reprimand came after the FCC in 2004 reversed its position and said even “fleeting” expletives exposed the network to sanctions.

The stakes for broadcasters increased when Congress voted in 2006 to raise the maximum fines for indecency tenfold. But in June, the U.S. Court of Appeals for the 2nd Circuit in New York concluded the policy was “arbitrary and capricious” under the Administrative Procedure Act because the commission had “failed to articulate a reasoned basis for its change in policy.” It also raised questions about First Amendment protections and sent the policy back for more work.

Appeals court judges also said the policy was unclear because the F-word was permitted in some news shows and in the TV broadcast of “Saving Private Ryan.” The commissioners said the profanity on the D-Day beaches was integral to depicting the horror of war.

Bush administration lawyers urged the high court to take up the dispute and to give the FCC a green light to enforce its crackdown on vulgar words. The government says broadcasters who use the public airwaves have a duty to protect children and families from unexpectedly hearing foul language.

Fox said it is looking forward to demonstrating the “arbitrary nature” of the indecency enforcement.

“FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing,” Fox Broadcasting spokesman Scott Grogin said in a statement.

It is not clear whether the growth of new media will affect the court’s view of what is indecent. Since the court last ruled on the issue, cable TV, the Internet and satellite radio have emerged as competitors to traditional broadcasters. But these new media are not regulated by the FCC because they do not transmit signals over the public airwaves.

Arguments in the case will be heard in the fall.

Other actions

On Monday, the Supreme Court also:

n Intervened in a dispute over whether prosecutors can use crime lab reports as evidence without having the forensic analyst who prepared them testify at trial.

n Agreed to decide a case over the drawing of legislative boundaries that could affect the ability of minorities to elect their candidates of choice.

n Declined to consider a lawsuit accusing tobacco companies of turning minors into smokers by targeting them with cigarette advertising.