Decision on profanity: fleeting

Supreme Court backs FCC, but appeals court to weigh constitutionality

In a setback for the TV industry, the Supreme Court on Tuesday backed government regulation and punishment of the use of curse words during live broadcasts — even in the case of single offending words.

However, in the 5-4 indecency case vote, the nation's highest court didn't decide whether the FCC's "fleeting expletives" policy is consistent with First Amendment free-speech rights, instead handing a call on that issue back to a federal appeals court.

The 2nd U.S. Circuit Court of Appeals in New York had ruled in favor of a Fox Television-led challenge to the policy, which Supreme Court Justice Antonin Scalia, in his opinion for the court, said is "neither arbitrary nor capricious."

Legal experts said it could take a while for the lower court to rule on the First Amendment issue.

"While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case," Fox said. "Fox is looking forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and (we) are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

Groups including the Parents Television Council and Common Sense Media lauded the decision. But given the close call and different opinions from six of the nine justices, James Steyer, CEO of CSM, acknowledged that "the legal world is still divided on the best ways to balance the interests of families with the First Amendment rights of broadcasters."

Charles Zielinski, an attorney at business litigation firm Bryan Cave, said the Supreme Court's decision "leaves broadcasters in a quandary." He and others predict that they will continue to "bleep" out "fleeting expletives" or run the risk of FCC sanctions.

Erik Huey, First Amendment expert and partner at Kilpatrick Stockton, said industryites will be disappointed that the question of the constitutionality of the FCC practice remains undecided.

"The judges kicked that can down the road," he said, adding that many had hoped one "fleeting expletive" could be considered acceptable.

Huey said that while broadcasters are affected, performers are not. "This decision doesn't change anything for them," he said. "Individuals have never been fined and will not be fined now." (partialdiff)