Justices to examine ‘fleeting’ expletives

Tuesday, March 18, 2008

WASHINGTON — Thirty years ago, cable television was beginning to take hold, satellite television was in its infancy, and on broadcast airwaves, “Mork & Mindy” debuted.

That year the Supreme Court issued FCC v. Pacifica Foundation, upholding FCC enforcement of rules that outlawed the broadcast of George Carlin’s recitation of the “seven dirty words” on radio.

Yesterday, the Court agreed to review the latest version of those same rules against a backdrop of a vastly different media landscape, where some of the language the FCC bans seems fairly tame.

The case FCC v. Fox Television Stations, also comes to a court in which some justices have questioned the validity of distinguishing between cable television, where profanity abounds, and over-the-air broadcast, where speech regulation persists.

“The categories don’t make any sense anymore,” said Robert O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression. O’Neil said yesterday that he hoped the Court would “begin by rewriting the whole matrix and context” for broadcast speech regulation.

But if the current Court uses the case to rearrange the regulatory landscape, will it loosen the reins on traditional broadcasters, or maintain on-air broadcasts as a last bastion of decency? Hard to predict, says O’Neil.

The current case looks at the FCC’s Bush-era expansion of decency regulation to cover even the “fleeting” or accidental use of expletives in live broadcasts. The Pacifica decision left that question unanswered, and for most of the 30 years since, broadcasters have felt generally unthreatened when a prime-time expletive escaped from an entertainer’s mouth.

That changed after the seemingly spontaneous use of the F-word by Cher in 2002 and both the F-word and the S-word by Nicole Richie in 2003 on Fox broadcasts of the Billboard Music Awards.

In accepting an award, Cher said critics had counted her out for decades, and she added, “So f— ‘em. I still have a job, and they don’t.”

Richie got an award for her role in a reality show that had her living a rural life. “Have you ever tried to get cow s— out of a Prada purse?” she asked on the air. “It’s not so f—— simple.”

After receiving complaints, the FCC ruled that these instances and others violated its policy and seemed to extend the ban on indecent language to “even relatively fleeting” instances. The commission also ruled against NBC when the singer Bono exclaimed during a Golden Globes award broadcast in 2003 that the award was “f—— brilliant.” The commission did not levy fines, however, finding that networks did not have adequate notice of its policy.

Networks appealed and won a ruling from the 2nd U.S. Circuit Court of Appeals that the FCC’s new rules were “arbitrary and capricious” and “divorced from reality.”

In his petition to the high court, Solicitor General Paul Clement said the 2nd Circuit ruling conflicted with the 1978 Pacifica ruling. Clement said the Fox ruling had sent the FCC on a virtually impossible “Sisyphean errand” of revising its regulations.

Networks, which face increased fines for violating the indecency rules, tried to persuade the Supreme Court to let the 2nd Circuit ruling stand. They hired Supreme Court veterans to plead their case. Sidley Austin’s Carter Phillips is representing Fox, while Miguel Estrada of Gibson, Dunn & Crutcher filed a brief for NBC Universal.

Estrada wrote that the Pacifica ruling rests on a “moth-eaten foundation.” With the wide availability of cable and satellite television and the Internet, which are not governed by the FCC indecency regulation, “there no longer exists any sound basis for according broadcast speech less protection than obtains in other channels of communication.”

O’Neil noted that several justices, and not just liberals, have expressed similar sentiments. For instance, Justice Clarence Thomas, writing in the 1996 Denver Area Educational Telecommunications Consortium v. FCC ruling, said the distinctions the Court has made between media for First Amendment purposes were “dubious from the start.”

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