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Will the Supreme Court Finally Lift Ban on 'Seven Dirty Words' You Can't Say on TV? (Analysis)

Cher Nicole Richie Split - H 2012
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The FCC warned Fox over expletives uttered by Cher and Nicole Richie on awards shows.

Tuesday will be a very vulgar day at the U.S. Supreme Court.

For the second time in the last four years, the justices of the high court will consider the FCC's authority in policing curse words on broadcast television. In 2009, the Supreme Court decided narrowly (5-4) that the FCC's ban on fleeting vulgarity was "entirely rational," while side-stepping the constitutional challenges brought by network broadcasters. This time around, after the 2nd Circuit Court of Appeal said the FCC policy was unconstitutionally vague, the Supreme Court will likely make a landmark ruling about how to square First Amendment rights with the government's interest in protecting families from indecent speech.

The battle stretches back more than 30 years, since comedian George Carlin gave his famous monologue, "Seven Words You Can Never Say On Television."

In the aftermath, the Supreme Court took up an examination of the government's role in regulating indecency over the public airwaves. In the famous 1978 decision in FCC vs. Pacifica Foundation, Supreme Court Justice John Paul Stevens upheld the FCC's authority while preaching some vague restraint. "We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene," he wrote.

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Over the next two decades, indecency came up here and there, with rules being tweaked and complaints being made, but it wasn't until the early part of this new century, when the FCC got aggressive under the George W.  Bush administration, that broad constitutional challenges were presented again about the FCC's authority to regulate indecency.

The FCC warned Fox over expletives uttered by Cher and Nicole Richie on awards shows, and also fined ABC for fleeting nudity on the drama NYPD Blue. That led to a lawsuit by Fox and other broadcasters against the FCC for imposing rules that were "arbitrary and capricious."

In 2009, U.S. Supreme Court Justice Antonin Scalia upheld the FCC's ban, taking a shot at “foul-mouthed glitteratae from Hollywood,” but passed on an opportunity to issue a broad ruling on the First Amendment challenges brought by broadcasters.

Instead, the case (Fox vs. FCC) went back to the 2nd Circuit, which took another opportunity to strike down the ban. The appellate circuit hinted that the time had come to re-examine indecency on broadcast television in light of the development of cable television, YouTube, Twitter and various new media since the 1978 Pacfica decision.  "The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus," wrote Circuit Judge Rosemary Pooler in a 2010 decision.

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At the same time, Judge Pooler said that it was up to the Supreme Court to overrule Pacifica and constrained the lifting of the FCC's ban merely because it was too vague.

Now, the U.S. Supreme Court gets another bite at the apple as the Obama administration defends the FCC's authority to provide children a safe harbor on broadcast television from indecency.

The government is supported by conservative family groups like the Parents TV Council, which points to a proliferation of curse words on broadcast TV (1,227 bleeped and unbleeped utterances of "fuck" and "shit" last year, according to the group) and warns that if networks get their way at the high court, it will mean that "the American people are going to get a rude awakening when broadcast TV becomes indistinguishable from Cinemax, HBO or something even more explicit."

The forthcoming ruling could go either way.

On one hand, the U.S. Supreme Court has shown an interest in expanding the scope of the First Amendment, ruling in Citizens United that government regulations on campaign expenditures violated constitutional protections for free speech. And very notably, last year, the Supreme Court struck down a California ban on violent video games, saying that "basic principals of free speech" shouldn't be restricted without a "compelling government interest." 

On the other hand, recent research has suggested that the Supreme Court's image as a defender of free speech is overstated, as the justices have heard fewer First Amendment cases and ruled in favor of free speech with less frequency than any time in the past 50 years. Plus, this is still a court that tends to be conservative and/or squeamish on social issues. As proof, compare the Supreme Court's 2009 decision with the subsequent ruling by the 2nd Circuit the following year. Guess which one decided to use the "S-Word" in the written opinion and which one decided to spell it out.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner