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Supreme Court to consider FCC's stance on expletives

WASHINGTON — The Supreme Court announced Monday that it will rule on the government's standards for policing the public airwaves 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 radio and television broadcasts during daytime and early evening hours is subject to punishment.

The lawsuit by Fox Broadcasting arose after the commission reprimanded the broadcaster for incidents in 2002 and 2003, when singer Cher and celebrity Nicole Richie, 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.

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.

The Bush administration urged the Supreme Court to take the case on appeal, saying the lower court's ruling had left the FCC in an "untenable" position between protecting children and protecting freedom of speech.

Fox said it is looking forward to demonstrating the "arbitrary nature" of the FCC's indecency enforcement.

Television and radio stations say the FCC's shifting standards have left them without guidance on what they can air without fear of an indecency fine. For instance, in 2004, several ABC affiliates refused to air the World War II epic Saving Private Ryan for fear that the film's profanities would bring an FCC fine. After the movie aired, the FCC said it would not have fined the stations, saying the profanities were part of the context of the historical film.

The court's last substantial decision on broadcast indecency came in 1978, when justices in FCC vs. Pacifica Foundation ruled against the broadcast of Carlin's monologue about words that he said could not be spoken on the airwaves. The ruling said the federal government has the authority to police over-the-air radio and television broadcasts for "patently offensive" material of a sexual or excretory nature from 6 a.m. to 10 p.m., when children are mostly likely to be in the audience. (The FCC has no authority over cable and satellite radio and TV.)

But the opinion by Justice John Paul Stevens for the splintered court stressed the narrowness of the decision and added, "We have not decided that an occasional expletive in either setting would justify any sanction."

The FCC maintained the same policy until singer Janet Jackson's breast was exposed during halftime of the 2004 Super Bowl. The FCC was inundated with hundreds of thousands of complaints not just about that but also about declining standards of language on the airwaves, and the commission revised its policy.

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Supreme Court to consider FCC's stance on expletives 03/17/08 [Last modified: Thursday, October 28, 2010 9:41am]

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