Supreme Court upholds tough fines for broadcasts of ‘fleeting’ expletives

Washington D.C., Apr 28, 2009 / 22:07 pm

In what family advocates called a “huge victory,” the U.S. Supreme Court has ruled that the Federal Communications Commission (FCC) may impose significant fines on television broadcasters for airing “fleeting” expletives.

The justices, in a 5-4 decision, said federal law has long prohibited the broadcast of indecent language. According to the Los Angeles Times, Justice Antonin Scalia referred to the perpetrators of several incidents as the “foul-mouthed glitteratae from Hollywood.”

One such incident cited by Scalia involved the entertainer Cher using the “F-word” during a live Fox network broadcast at the Billboard Music Awards. The event had about 2.5 million minor viewers, Justice Scalia said.

Other incidents were caused by Bono and Nicole Richie during other entertainment industry award shows.

The FCC responded by implementing a new policy punishing the broadcast of a “fleeting expletive” with fines for the network and all local broadcasters who aired the show.

Fox and other networks went to court, arguing the change in policy was unjustified and unwarranted.

In FCC vs. Fox Television, the Supreme Court confirmed the government’s power to police the airwaves.

However, the decision does not affect cable TV, satellite broadcasts or the Internet because they do not rely on the federally regulated public airwaves.

"The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children," said Justice Scalia in the written majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas, and Samuel A. Alito.

Broadcasters can ask the FCC to revise its policy as President Obama is appointing its new commissioners. They can also ask Congress to revise the relevant law.

The Supreme Court also said the broadcasters can argue claims of First Amendment violations before the federal appeals court in New York.

Andrew Jay Schwartzman, president and chief executive of the Media Access Project, called the decision “extremely disappointing.” According to the Los Angeles Times, he characterized the FCC’s policies as “restrictive” and said he and his allies hope they will ultimately be declared unconstitutional.

“[T]here will be several more years of uncertainty, and impaired artistic expression,” he commented, saying the court chose not to confront First Amendment issues.

The Parents Television Council (PTC), which filed FCC indecency complaints over the two incidents in the case and had submitted an amicus curiae brief, praised the decision.

“Today’s ruling by the Supreme Court is an incredible victory for families. The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free,” PTC President Tim Winter said in a statement.

Winter agreed with the court that the FCC’s broadcast decency policy is “entirely rational” and not “arbitrary” or “capricious.”

“Broadcasters must abide by the terms of their licenses. They must not air indecent material before 10:00 p.m. – the hours when children are most likely to be in the viewing audience,” Winter continued. “We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families.”

Winter also encouraged the FCC to use the court’s opinion to “break the indecency complaint logjam and rule on the merits of the tens of thousands of indecency complaints currently awaiting review at the Commission.”

Penny Young Nance, a former policy Advisor to the Federal Communications Commission on indecency issues, said the decision was a “huge victory for American families.”

“Once again the Supreme Court has reaffirmed that the government does have a role in protecting children,” Nance said. American families understand that the public airwaves, like public parks, are owned by all of us. The networks do not have the right to pollute the airwaves with the 'F-word' at will."