- The Washington Times - Tuesday, March 18, 2008

The U.S. Supreme Court this fall will consider the issue of profanity on the airwaves for the first time in 30 years.

The high court yesterday agreed to hear arguments on a Federal Communications Commission policy of punishing so-called “fleeting expletives” — isolated broadcasts of curse words — with monetary fines. The FCC asked for a review after a federal appeals court invalidated the policy as “arbitrary and capricious.”

The case stems from two broadcasts of the “Billboard Music Awards” on Fox Television Stations in which Cher and Nicole Richie used profane language during the show’s 2002 and 2003 episodes. The FCC said the broadcasts were indecent because the expletive in question has an “inherently” sexual connotation and is therefore subject to penalty under federal indecency standards.

By a 2-to-1 vote, the 2nd U.S. Circuit Court of Appeals in New York in June said the FCC had changed its rules but failed to provide sufficient reasons for doing so. The court stopped short of overturning the policy, instead sending it back for further explanation.

The last time the Supreme Court heard a broadcast indecency case was FCC v. Pacifica Foundation in 1978, when the court held that government censorship of “patently offensive” words can pass constitutional muster. That case put in place an enforcement regime partially based on the “first blow” theory that indecent material on the airwaves enters into the privacy of the home uninvited and without warning.

Legal experts say the fleeting expletives case is particularly significant because the FCC’s enforcement of indecency rules has evolved since the Pacifica case.

“The FCC has been on something of an indecency crusade since 2004. It has also greatly increased the level of fines — without Congress’ authorization,” said Glen Robinson, a professor at the University of Virginia School of Law and a former FCC commissioner.

The commission set a record in 2006 when it levied a $3.6 million fine against CBS for a 2004 episode of “Without a Trace” that depicted a rape scene, albeit without nudity. ABC is currently appealing a $1.2 million fine for a 2003 episode of “NYPD Blue” that revealed a woman’s naked buttocks. Both networks, along with NBC, joined the Fox complaint.

Traditionally, the agency targeted provocative shock jocks like Howard Stern. It later expanded to mainstream TV shows and “has now added to the target list shows where there are only fleeting references to [expletives]. … I think it is fair to say that the enforcement actions taken in recent years go beyond anything that the FCC contemplated in its initial Pacifica case,” said Mr. Robinson, who wrote amicus briefs in the two previous lower court decisions in favor of the broadcasters. “I was on the commission at that time and I think I have a pretty good idea what it was after then.”

Jerome A. Barron, a professor at the George Washington University Law School, noted that the Pacifica case did not address the broader issue of FCC fines.

“In Pacifica, the court emphasized that they were just considering that complaint,” he said. “They certainly weren’t considering whether [the FCC] could levy heavy fines. So this case raises new issues — overbreadth, vagueness, the question of what is to confine the FCC other than its own sense of self-restraint in assessing these fines.”

When the FCC declared the 2002 and 2003 Billboard shows indecent in 2006, it did not impose a fine because the broadcasts aired before the fleeting expletives policy was crafted in 2004. The agency developed the policy in response to a 2003 NBC broadcast of the “Golden Globes” during which U2 frontman Bono uttered an expletive.

FCC Chairman Kevin J. Martin yesterday praised the Supreme Court’s decision to hear the agency’s appeal.

“The commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility. I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience,” Mr. Martin said.

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