Court to decide: What the @!*#%?


The U.S. Supreme Court has stepped into one of the biggest free speech fights of the past three decades, but it's unclear how far the court will go when it rules on just how much trouble broadcasters can get into for a slip of the tongue.

On Monday, the court agreed to hear arguments over the FCC's policy regarding so-called "fleeting expletives" in a closely watched case that will decide whether the government can fine or revoke a broadcaster's license because someone says a bad word. The case will be argued late this year.

Both News Corp., the Fox Broadcasting Co. parent that wanted its victory in a lower court to stand, and the FCC, which pushed the Bush administration to appeal the case, applauded the justices' decision.

"The commission, Congress and most importantly parents understand that protecting our children is our greatest responsibility," FCC chairman Kevin Martin said.

Solicitor general Paul Clement, the Bush administration's top lawyer, urged the court to take the case, arguing that the appeals court decision had placed "the commission in an untenable position," powerless to stop the airing of expletives even when children are watching.

Fox said the move will "give us the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace, where parents have access to a variety of tools to monitor their children's television viewing."

The case surrounds two incidents in which celebrities used profanity during the Billboard Music Awards. In 2002, Cher told the audience: "People have been telling me I'm on the way out every year? So fuck 'em." The next year, Nicole Richie said: "Have you ever tried to get cow shit out of a Prada purse? It's not so fucking simple."

Although the case concerns those utterances, it is grounded in a policy the commission developed after a 2004 incident in which U2's Bono said on NBC that winning a Golden Globe was "really, really fucking brilliant." After that, the commission changed its long-standing policy and decided that some words are so inherently awful that broadcasters are liable even if the words come as a surprise. (NBC challenged the decision, but that case has yet to be resolved.)

The FCC found that Fox violated the Bono doctrine for the comments made by Cher and Richie, but the panel decided against issuing a fine because the shows aired before the commission altered the policy.

Fox, CBS, NBC and other broadcasters challenged the commission's decision, arguing that it chills free speech, threatens live programming and is unduly vague.

The networks contend that commission flip-flops on individual shows and violations make it impossible to figure out just what the agency means. It pointed out that the commission has said the use of versions of "fuck" and "shit" in Steven Spielberg's "Saving Private Ryan" is not actionable while the use of them in the Martin Scorsese documentary "The Blues: Godfathers and Sons" is.

The networks won their case in the 2nd Circuit Court of Appeals, which said the FCC failed "to articulate a reasoned basis for its change in policy."

The court overturned the FCC's policy, not on First Amendment grounds but as a violation the Administrative Procedures Act. That decision makes it unlikely that the Supreme Court will toss out the nation's indecency statute.

"Given that it's the Supreme Court and they can do whatever they want, what this really is is an appeal by the government that Pacifica (a 1978 court ruling) wasn't followed," said Andrew Jay Schwartzman, president and CEO of First Amendment advocacy organization the Media Access Project.

The Pacifica decision came about after a complaint was raised against a Pacifica station in New York that played George Carlin's "Filthy Words." While it established First Amendment protection for indecent speech, it also said that the FCC could issue regulations to protect children from the language.

Material is considered indecent if it "in context, depicts or describes sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the broadcast medium." Indecent speech can be aired safely from 10 p.m.-6 a.m.

"It's really a down-and-dirty administrative-law case," Schwartzman said.

No matter what turn the case takes, it could be a landmark ruling by the court led by Chief Justice John Roberts and is sure to become fodder for free speech advocates and those who champion more government control.

Caroline Fredrickson, director of the ACLU's Washington office, said the indecency policy is part of a witchhunt by the FCC.

"The FCC's new policy of policing television broadcasts with a vengeance doesn't survive First Amendment scrutiny," she said. "Giving the commission the ability to leverage arbitrary fines based on a vague set of standards will have a chilling effect on free speech, because broadcasters trying to avoid the penalties will err on the side of caution and begin censoring content that wouldn't actually be considered indecent."

The policy is not without supporters.

"Such harsh, unedited profanity is unacceptable for broadcast over the publicly owned airwaves when children are likely to be watching," Parents Television Council president Tim Winter said.

Winter used the Supreme Court decision as a call for congressional action. Legislation reversing the 2nd Circuit's decision has languished in Congress despite approval by the Senate Commerce Committee.

Separately, CBS is challenging a $550,000 fine that the FCC imposed for the "wardrobe malfunction" that bared Janet Jackson's breast during the 2004 Super Bowl halftime show. The 3rd U.S. Circuit Court of Appeals in Philadelphia is considering whether the incident was indecent or merely a fleeting and accidental glitch that shouldn't be punished.