[Infowarrior] - Supreme Court Hears FCC Profanity Case

[Richard Forno]

Great use of the Court's time, eh?  --rf


Supreme Court Hears FCC Profanity Case

By Jerry Markon
Washington Post Staff Writer
Tuesday, November 4, 2008; 4:04 PM

http://www.washingtonpost.com/wp-dyn/content/article/2008/11/04/AR2008110400579_pf.html

It's not every day that a top lawyer for the Bush administration, standing
before the black-robed justices of the Supreme Court, invokes the specter
of "Big Bird dropping the F-bomb on Sesame Street."

Yet it was that kind of morning in the august courtroom, where the
justices weighed a new government policy that can punish television
networks for a one-time, or "fleeting" expletive, as opposed to a stream
of profanities. The case came about after singer Cher dismissed her
critics by saying "[expletive] 'em" during a live 2002 awards show, and
celebrity Nicole Richie told millions of viewers in 2003: "Have you ever
tried to get cow [expletive] out of a Prada purse? It's not so [expletive]
simple."

The justices made their usual majestic entrance, and the argument began
with the typically sober discussion of weighty legal issues. But the
lawyers were soon jumping through verbal hoops to avoid saying the words
at issue, trying everything from "these words" to expletives, swearing,
the F-word, the F-bomb and "freaking."

Chief Justice John G. Roberts Jr. debated with a lawyer for Rupert
Murdoch's Fox network, which aired the Cher and Richie remarks, whether
such words inherently denote offensive "sexual or excretory activities" --
the definition the Federal Communications Commission's used to cite Fox
for broadcasting indecent material.

Roberts asked, "Why do you think the F-word has" such power? ". . .
Because it's associated with sexual or excretory activity. That's what
gives it its force."

The tension in the crowded courtroom gave way to laughter when 88-year-old
Justice John Paul Stevens asked whether the FCC would sanction a
broadcaster if the indecent remark "was really funny." Solicitor General
Gregory G. Garre said it might depend on the context.

"So bawdy jokes are okay, if they're really good," Justice Antonin Scalia
cracked, to more laughter.

Stevens also asked whether the word "dung" would be indecent (Garre said
probably not) and Justice Stephen G. Breyer added the observation that
during live television "you're dealing with a cross section of humanity,
and my experience is that some sections of that cross section swear."

But nary a curse word was heard amid a debate that soon turned to the
serious issues at hand. The case culminated a battle over what can be said
on radio and television, part of a broader culture clash between those who
see increasing profanity on the airwaves as harming children and debasing
the nation's values and others who believe the government's crackdown
threatens free speech and artistic expression.

The government has imposed decency standards on broadcasters since the
1920s, and currently the FCC prohibits the broadcast of sexual or
excretory content on over-the-air radio and television between the hours
of 6 a.m. and 10 p.m., when children are most likely to be in the
audience.

Even with those rules, there have been periodic flare-ups over what can be
said on-air. The issue really heated up after the split-second television
exposure of singer Janet Jackson's breast during the 2004 Super Bowl
halftime show.

Hundreds of thousands of viewers complained, prompting the FCC to change a
long-standing policy that only repeated use of on-air expletives would be
punished. The commission didn't fine Fox for the Cher and Richie incidents
because the policy was new but made it clear that further "fleeting," or
one-time, use of obscenities could draw punishment.

Television networks protested, but Congress in 2006 raised the maximum
indecency fine from $32,500 to $325,000. President Bush signed the bill,
saying that network television "too often pushed the bounds of decency."

Fox filed suit, arguing that the FCC's policy change was arbitrary and
that the designation of the fleeting F-words as indecent violated the
broadcaster's First Amendment rights. A federal appeals court in New York
agreed, issuing a 2-1 decision last year that broadly questioned whether
the FCC still has the right to police the airwaves for offensive language.
(The FCC has no authority over cable and satellite radio and TV.)

The Bush administration petitioned the Supreme Court, which agreed to hear
its first substantial case on broadcast indecency since a 1978 decision
that said comedian George Carlin's "seven dirty words" monologue was
indecent. That narrow decision, written by Stevens, spelled out that the
court had not decided the issue of "an occasional expletive."

Garre urged the justices to back the FCC, saying that upholding the
appellate ruling could lead to "a world where the networks are free to use
expletives 24 hours a day," including, he said, the Big Bird "F-bomb"
scenario. "Everyone acknowledges that a word like the F-word is one of the
most vulgar, graphic and explicit words in the English language" in
describing sexual activity, he said.

Carter Phillips, an attorney for Fox, questioned what he called the FCC's
shifting definitions of indecency and raised the specter of stations being
afraid to broadcast live events -- everything from documentaries to high
school football games -- for fear that someone might curse. Recently, he
said, a Vermont public television station excluded a political candidate
from a live debate because he had sworn during a previous public forum.

But Phillips ran into resistance from several members of the court's
conservative wing, especially Scalia, who decried what he called the
"coarsening" of the broadcast networks and asked whether those who are
offended by such words have their position taken into account.

The networks argue that it wouldn't be a free-for-all if the FCC stopped
policing the airwaves because producers could still put cursing and nudity
on any show after 10 p.m., without fear of a fine.

A recent study by the Parents Television Council found that the use of
what it defines as expletives has nearly doubled in primetime broadcast
television since 1998, and council President Tim Winter, a former NBC
executive, said in an interview that without Supreme Court intervention
"we're going to see a tidal wave of ever more graphic material when
children are watching."

But Marjorie Heins, a lawyer for the American Civil Liberties Union and
other organization that filed a brief supporting Fox, called on the FCC to
let broadcasters make their own judgments about standards of language.

"There's always a risk in a society that values free expression that
someone will be offended," she said in an interview. "The First Amendment
doesn't tolerate language police, and it shouldn't."