- The Washington Times - Wednesday, November 5, 2008

A government lawyer warned Supreme Court justices Tuesday that curse words could conceivably emerge on television shows like “Sesame Street” and “Jeopardy” if federal media regulators can’t enforce a new policy on “fleeting expletives.”

Lawyers representing the Federal Communications Commission and Fox Television Stations Inc. faced off in the first broadcast indecency case before the high court since 1978, sparring over whether the FCC’s 2004 decision that fleeting curse words could be found indecent was an “arbitrary and capricious” departure from nearly 30 years of precedent, or if the agency provided a reasoned explanation for its change in course.

The case stems in part from two broadcasts of the Billboard Music Awards on Fox that involved profanity on live television. In 2002, pop singer Cher, speaking about her critics, said, “[expletive] ‘em.” The following year, celebrity Nicole Richie asked: “Have you ever tried to get cow [expletive] out of a Prada purse? It’s not so [expletive] simple.” The commission found the segments to be indecent but didn’t levy fines, noting that its new stance on fleeting expletives represented a change in policy.

Fox, joined by the other big three broadcast networks, challenged the FCC in court. The 2nd Circuit Court of Appeals last summer ruled against the agency, saying it violated the Administrative Procedure Act (APA).

During oral arguments Tuesday, Chief Justice John G. Roberts Jr. and Justice Antonin Scalia were deferential to the commission.

“What the commission said is that the prior decisions or guidance was seriously flawed and we reaffirmed that it was appropriate to disavow it,” Chief Justice Roberts said.

In its 1978 decision in FCC v. Pacifica Foundation, the Supreme Court said indecency is “intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of day when there is a reasonable risk that children may be in the audience.”

The FCC noted in 1987 that isolated utterances did not rise to the level of indecency. But in its finding that the Billboard Music Awards broadcasts were indecent, the agency said the particular expletive used by Cher and Miss Richie “inherently has a sexual connotation,” regardless of whether it was being used literally or merely as an “intensifier.”

Solicitor General Gregory G. Garre, arguing on behalf of the FCC, warned that allowing the use of fleeting expletives over the airwaves would make it legal for networks to air curse words at any time - “going from the extreme example of Big Bird dropping the F-bomb on ‘Sesame Street’ to the example of using that word during ‘Jeopardy’ or opening the episode of ‘American Idol.’ ”

Mr. Garre urged the court to consider the case narrowly on APA grounds and not delve into broader First Amendment issues, such as reconsidering Pacifica. While the 2nd Circuit’s decision hinged on a violation of the APA, the majority opinion also questioned whether a reasoned explanation could pass constitutional muster.

Still, when Justice Ruth Bader Ginsburg pointed out that Pacifica - in which the court said broadcast is a “uniquely pervasive” medium and therefore subject to less First Amendment protection - “was before the Internet,” Mr. Garre said the rise of additional media outlets only bolsters the government’s indecency regime.

“Americans who want to get indecent programming can go to cable TV, they can go to the Internet,” he said. “But broadcast TV is, as Congress designed that to be, the one place where Americans can turn on the TV at 8 o’clock and [eat] their dinner and not [expect] to be bombarded with indecent language.”

Fox counsel Carter G. Phillips said the FCC did not adequately explain its new position that an expletive could be indecent even if it were not being used to describe or depict sexual or excretory organs or activities.

“The reality is that from 1978 until 2004 this kind of language was used routinely, without the commission remotely suggesting that every time it was used it necessarily had a particular meaning,” said Mr. Phillips, of the D.C. firm Sidley Austin LLP.

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