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Supreme Court Takes Up ‘Fleeting Expletives’ Case on Tuesday

Nov 2, 2008  •  Post A Comment

Tuesday may be Election Day, but at the U.S. Supreme Court the focus won’t be on Obama vs. McCain. Rather, it will be on the Federal Communications Commission’s stepped-up indecency enforcement efforts.
In a case that could have a dramatic impact on broadcast TV’s content, the high court takes up the FCC’s attempt to replace its traditional stance of ignoring fleeting expletives on live broadcasts with a new policy that identifies them as indecency violations.
“I don’t think it’s possible for the court to make a ruling that isn’t a big ruling,” said Tim Winter, president of the Parents Television Council.
In a recent Washington speech, Fox Chief Operating Officer Peter Chernin called the FCC action “an absolute threat to the First Amendment.”
The case “hinges on utterances that were unscripted on live television. If we are found in violation, just think about the radical ramifications for live programming—from news, to politics, to sports … in fact, to every live broadcast television event,” Mr. Chernin said. “The effect would be appalling.”
The case stems from utterances by Cher and Nicole Richie during Fox’s live broadcasts of the Billboard Music Awards in 2002 and 2003. Traditionally the FCC ignored unscripted comments made on live shows, but in the face of a congressional uproar over a statement made by Bono during a Golden Globe Awards telecast on NBC, the FCC decided to get tougher. The agency didn’t fine Fox stations in the Billboard awards instances, but said it viewed the comments as violating its indecency rules.
The FCC’s decision was overturned by an appeals court and the Justice Department appealed the case to the Supreme Court.
The FCC has taken a number of indecency enforcement actions, including one against CBS stations in the Janet Jackson Super Bowl half-time “wardrobe malfunction” incident, and another against ABC and Fox stations over episodes of “NYPD Blue” and “Married by America.”
Now broadcasters upset with the FCC regulating content, as well as some of those who believe TV has gotten too raunchy, hope to seize on the Fox case and other recent indecency actions to get the high court to revisit the content regulation it allowed in a 1978 ruling. In that case, the court upheld the FCC’s finding that a Pacifica radio station’s airing of a version of George Carlin’s “seven dirty words you can’t say on television” monologue amounted to indecency. Justice John Paul Stevens, who remains on the high court, wrote that 1978 ruling.
Fox, other broadcasters and their supporters are pushing the court to drastically rein in the FCC.
They argue that the agency is exceeding the very limited regulation allowed in the 1978 decision, that the FCC’s standards are vague and unconstitutional and that technology developed since then raises doubts about the need for regulation. They say because viewers get their TV from cable, satellite or the Internet, there is little logic in regulating decency on broadcast TV alone, as that makes for an uneven playing field. They also suggest the FCC’s regulation leaves what is and what isn’t allowed unclear and they point to the V-chip’s ability to screen out offensive content.
Supporters of the FCC say the government is returning to its proper role in making sure the public airwaves are used for public purposes; they question the ability of technology to screen content. The Justice Department, which is defending the FCC, said the decision of how to regulate should be left up to the agency.
Mr. Winter said broadcast TV’s decline in standards and the networks’ unwillingness to police themselves renders the touted technical solutions to offensive content of little use. As an example, he cited a recent “Survivor” episode rated TV-14 in which a man’s penis was accidently exposed.
The case has broad implications, according to David Kohler, former general counsel of CNN and now a professor of law at Southwestern Law School, who has written several law review articles on the matter.
“Fundamentally the issue is to what extent should the federal government be in the business of regulating content,” he said.
While the high court could use the case to make a major First Amendment ruling, legal observers caution it also could decide the case far more narrowly. An underlying issue in the case is whether the FCC gave sufficient notice and explanation for toughening its indecency standards. The court could limit its decision to that question.

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