WASHINGTON (AP) - The Supreme Court deleted expletives left and
right Tuesday in narrowly upholding a government policy that
threatens broadcasters with fines over the use of even a single
curse word on live television.
But in six separate opinions that used none of the offending
words over 69 pages, the justices suggested they could yet find the
Federal Communications Commission's "fleeting expletives" policy
unconstitutional. The court said a federal appeals court should
weigh whether it violates First Amendment guarantees of free
The precipitating events were live broadcasts of awards shows in
which Bono, Cher and Nicole Richie - Justice Antonin Scalia
referred to the latter two as "foul-mouthed glitteratae from
Hollywood" - let slip or perhaps purposely said variations of what
Scalia called "the F- and S-words."
By a 5-4 vote, the court threw out a ruling by the 2nd U.S.
Circuit Court of Appeals in New York. That court had found in favor
of a Fox Television-led challenge to the FCC crackdown and had
returned the case to the agency for a "reasoned analysis" of its
the tougher policy on indecency.
The commission appealed to the Supreme Court instead.
Scalia, writing for the court, said the FCC policy, adopted in
2004, was "neither arbitrary nor capricious."
Acting FCC Chairman Michael Copps called the decision "a big
win for America's families." Copps said the "decision should
reassure parents that their children can still be protected from
indecent material on the nation's airwaves. "
Fox expressed disappointment but said it was "optimistic that
we will ultimately prevail when the First Amendment issues are
fully aired before the courts."
The FCC toughened its long-standing policy after it concluded
that a one-free-expletive rule did not make sense in the context of
keeping the air waves free of indecency when children are likely to
be watching television.
Under the new FCC rule, some words are deemed to be so offensive
that they always evoke sexual or excretory images. So-called
fleeting expletives were not treated as indecent before the change.
The policy essentially excludes news programming and some other
broadcasts, including ABC's airing of "Saving Private Ryan" in
In the short term, the decision probably will lead the justices
to reverse a similar appeals court ruling in the FCC's effort to
fine CBS Corp. over Janet Jackson's wardrobe malfunction at the
2004 Super Bowl. That case has been pending at the high court since
The federal appeals court in Philadelphia threw out a $550,000
indecency fine against CBS over Jackson's breast-baring episode
during the halftime show. The court said the incident lasted
nine-sixteenths of a second and should have been regarded as
Tim Winter, president of the Parents Television Council advocacy
group, said he was thrilled by Tuesday's decision. Winter said he
hopes the FCC now takes up "tens of thousands" of pending
The FCC said it is reviewing the ruling before deciding how to
proceed on pending complaints.
In its last major broadcast indecency case, the court ruled 31
years ago that the FCC could keep curse words off the airwaves
between 6 a.m. and 10 p.m.
Justice Clarence Thomas sided with the majority Tuesday, but he
nevertheless noted that the previous decision and an even earlier
case "were unconvincing when they were issued, and the passage of
time has only increased doubt regarding their continued validity."
When the court upheld the FCC regulation in 1978, broadcast TV
was the only television available to most Americans.
Today, the Internet, cable and satellite television are in
millions of homes, yet the FCC's authority extends only to
broadcast television and radio, as Thomas noted.
"For most consumers, traditional broadcast media programming is
now bundled with cable or satellite services," he said.
Justice Ruth Bader Ginsburg, who dissented Tuesday along with
the other three liberal justices, similarly raised constitutional
concerns. Ginsburg said that in a case that turns on government
restriction of spoken words, "there is no way to hide the long
shadow the First Amendment casts over what the commission has
The nub of Tuesday's ruling was whether the FCC took a
reasonable course in changing its policy and concluding that
profanity referring to sex or excrement is always indecent.
Scalia, joined by his four conservative colleagues, said the FCC
"could reasonably conclude that the pervasiveness of foul
language, and the coarsening of public entertainment in other
media" justified a stricter policy "so as to give conscientious
parents a relatively safe haven for their children."
But Justice John Paul Stevens said in dissent that the FCC
missed the mark in failing to distinguish how the offending words
"As any golfer who has watched his partner shank a short
approach knows," said Stevens, an avid golfer, "it would be
absurd to accept the suggestion that the resultant four-letter word
uttered on the golf course describes sex or excrement."
Stevens also noted the frequent airing of television commercials
during the prime-time hours under FCC surveillance - advertisements
which, for instance, ask viewers "whether they, too, are battling
erectile dysfunction or are having trouble going to the bathroom."
Fox Television Stations, owned by Rupert Murdoch's News Corp.,
and other networks challenged the policy after the FCC singled out
use of profanity during awards programs that were aired in 2002 and
In each instance, a variation of the F-word was used either as a
modifier - as in Bono's comment that an award was "really f---ing
brilliant" - or as a metaphor, as when Cher said, "F--- 'em," to
The case is FCC v. Fox Television Stations, 07-582.