by David G. Savage
The Supreme Court said today 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 impose huge fines on 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 trigged the FCC's crackdown.
When entertainer Cher was given a life-time achievement award on Billboard Music Awards, 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 on 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 sudden change in policy was unjustified and unwarranted.
But the Supreme Court upheld the new policy today in FCC v. Fox Television and confirmed 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 the their children," Scalia said.
While the ruling is a defeat for broadcasters, they can urge the FCC to revise its policy, now that President Obama is appointing new commissioners. They could also urge Congress to revise the law. The court also said the broadcasters can go back to the federal appeals court in New York and argue the policy violates the 1st Amendment.
Andrew Jay Schwartzman, President and CEO of the Media Access Project (MAP), said groups such as his which 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 mid-day broadcasters. It had remained unclear whether a single expletive could trigger an FCC fine.
However, today's decision 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.
While today's decision dealt with foul words, it will also likely revive a $550,000 FCC fine over the "wardrobe malfunction" during the Superbowl broadcast which showing a fleeting image of Janet Jackson's breast.
Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Clarence Thomas and 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 the 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.
Comments
"the Federal Communications Commission had ample authority to crack down on what Justice Antonin Scalia called the "foul-mouthed glitteratae from Hollywood."
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Yeah I agree Scalia and you can start by craking down on this foul-mouthed glitteratae.
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http://www.youtube.com/watch?v=5j2YDq6FkVE
Posted by: Alex | April 28, 2009 5:32 PM
John Paul Stevens was chuckling.
Why?
Because he wrote the original Chevon case about deference to administrative agencies?
Or because he sees that administrative agences will be controled by Democrats for years to come, and this decision seems to cede discretion to those agences and limit the scope of federal court review?
Or both?
Posted by: ornery | April 28, 2009 7:37 PM
You are missing the bigger point.
FCC exercise of discretion was withheld and federal court review was limited.
That why I think Justice Stevens was chuckling as Scalia delivered his barbs against the "Foul mouthed glitteratae (i)".
Scalia cut off his nose to spite his face.
He personalizes everything in his opinions, when you come right down to it.
He is not a very abstract thinker.
Stevens is in the mainstream of American judicial history.
He could see that , while Nino was having fun swatting at Cher, a major shift of power was in the offing:
Administrative agencies now can be more assured in exercising discretion than they were before, because judicial review is limited by this decision.
Justice Stevens, I've a notion, approves of the administration which has come to town and which will set the policy of those agencies.
Probably for a good, long time.
So: more power to the Obama Administration.
I never cared for Sonny & Cher anyway.
Posted by: ornery | April 29, 2009 12:31 AM
Sorry that was mistranscribed.
"Withheld" should have said "upheld".
Posted by: ornery | April 29, 2009 9:42 AM
Shouldn't ALL the networks have one of those "delay buttons" by now to block out the "single fleeting use" of expletives.
Either way, perhaps they should consider "time-tables" for the grittier shows that network TV wants. How about you can put on whatever you want between 9:00PM - 5:00AM (local times). If you have small children and they are up at that time, you've got parental problems anyway that an expletive here or there won't do much additional harm to.
Once a kid is about 11 or 12, they have probably heard most expletives from other kids or their own parents (Think "A Christmas Story". "Only I didn't say FUDGE".).
While I do believe there should be at least some balance between artistic expression and regulations over the public airwaves, ultimately it is up to the parents to teach their kids what appropriate language and behavior is. All the FCC regulations in the world won't matter with bad parenting.
Posted by: Steve34 | April 29, 2009 10:18 AM
There's no doubt that the networks and outfits like HBO have led to a coarsening and degrading of American standards of conduct.
The gun culture.
The drug culture.
The promiscuity.
The violence.
All celebrated for years in prime time.
Yes they can avoid FCC fines by having a time delay.
Just as C Span most of the time has had a time delay to frustrate the prank callers.
That's about the only substantive effect of this decision.
Parents could always have just turned off the tube, or moved the tube out of the house altogether.
As I said, it seems the more significant procedural point if you will is that it gives more power to the administrative agencies.
As if they needed it.
Posted by: ornery | April 29, 2009 11:25 AM
* * * * *
Posted by: ornery | April 29, 2009 9:42 AM
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For a second there, I thought you were talking to yourself. What have you been transcribing?
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In any event, I am not sure of the validity of the comments which you appear to have transcribed. Stevens dissented in this case, and separately joined the dissent of Justice Breyer. Stevens believes the FCC had to exert some effort (and certainly more than it had) to explain why its prior policy was no longer sound before it could be allowed to change course and prohibit the broadcasting of even “fleeting” expletives. He argued that regulatory stability is necessary to the affected broadcasters, and that such stability is undercut when an agency is allowed to inexplicably shift its ruling on such a vague standard as “indecency.”
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Stevens also wrote that the Court’s majority and the FCC erroneously assumed that the holding in FCC v. Pacifica Foundation, 438 U. S. 726 (1978) would permit a construction of the term “indecent” to include a fleeting expletive that has a sexual or excretory origin. The Pacifica case, he points out, involved George Carlin’s 12 minute “Seven Dirty Words You Can’t Say On Television” monologue that was filled with expletives. That case, according to Stevens, did not hold that a single, isolated expletive could qualify as “indecent,” much less that any word with a sexual or scatological origin, regardless of however used, would be indecent. In which case, Stevens would have held the FCC’s ruling showed a lack of awareness that it had gone beyond Pacifica, and that its policy choice should have been declared arbitrary and set aside as unlawful.
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In other words, Stevens was not a happy camper with regard to the majority opinion in the case.
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Moreover, I do not think it is fair to say that administrative agencies have substantially greater leeway in exercising discretion as a result of this opinion. The decision was actually very limited in scope. The majority only said that an agency is not required to give MORE of an explanation for a change in policy than is needed to establish a policy. Some explanation for a change in policy is still required. Nor does this mean, that an agency could formulate policies that violate the law and escape judicial review. As the majority pointed out, the boundary of administrative policy making is always circumscribed by Congress’ original enabling legislation.
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Finally, contrary to Stevens’ view, the Court chose not reach the constitutional question of whether the FCC had transcended the ruling in Pacifica because the Second Circuit Court of Appeal had not ruled on the issue. The good news is that the Supreme Court remanded the matter to the Second Circuit for disposition. Hence, the Second Circuit could very well decide the First Amendment Issue raised by the apparent difference between the FCC’s ruling and the Pacifica case.
Posted by: John W. | April 29, 2009 2:53 PM