Linguistic hygiene: On the Supreme Court docket: bleeeeeep

[Harold Schiffman]

On the Supreme Court docket: bleeeeeep

In FCC vs. Fox TV, the justices take up the future indecency standard
for television and radio.

By David G. Savage
November 2, 2008

Reporting from Washington -- The Supreme Court would not be
recommended as the best place in this city to hear a raucous
conversation that makes full use of the F-word, the S-word and
assorted other vulgarities.

It is a place of decorum. Officers will firmly reprimand a visitor who
errs by leaning an elbow on the next chair. Tuesday morning may be an
exception, however. While the nation focuses on the presidential
election, the justices will discuss the F-word and its variants in a
case that could determine whether these words will be heard more on
television and radio. The nation's broadcasters are fighting fines
imposed by the Federal Communications Commission for airing the banned
words, even if inadvertently. For example, when Cher won a Billboard
Music award, she said it proved her critics wrong: "People have been
telling me I'm on the way out every year, right? So f- - - 'em." Fox
TV broadcast the awards program live.

The channel's lawyer, Carter G. Phillips, said that "unless someone
tells me not to," he will use in court the actual words that federal
regulators hope to keep off the air. But the case is much more than a
swearing contest, with implications not only for broadcasters but for
viewers and parents. At issue is the future indecency standard for
television and radio. Will these broadcasts remain under strict
federal regulation because a mass audience that includes children may
be watching? Or will a looser standard prevail, giving broadcasters
and audiences more choice in what they see and hear?

The broadcasters say that the old rules are an unconstitutional
infringement on free speech. Also, about 9 in 10 Americans receive TV
signals via cable or satellite -- yet only the broadcast industry,
because it uses public airwaves, is subject to the legal rules, which
were set in a different era. That means most viewers have a menu of
channels that operate under different legal rules, with cable channels
largely free of government oversight. "The court has not revisited
this issue in 30 years, and we would like broadcasters to be treated
the same as cable TV or the Internet," Phillips said.

The broadcasters say federal policing and the prospect of high fines
for airing banned words poses an everyday threat. "I don't want to say
all live sporting events or all live broadcasts will come to a halt,
but what happens if an expletive gets on the air?" Phillips said. The
FCC "can impose a huge fine on the network and on all the local
stations that broadcast it."

Parents groups counter that children should be shielded from profanity
and sex on TV, and maintaining a standard of decency is a small price
to pay for access to public airwaves.

"They are using the public airwaves for free. We don't think we should
have to tolerate a race to the bottom to see who can go further," said
Timothy F. Winter, president of the Parents Television Council in Los
Angeles. He said he joined the group after watching TV with his young
daughter and finding it offensive. The group claims more than 1
million members, who in turn have launched a wave of complaints to the
FCC to protest vulgarity and sex on TV.

"As long as the law [against indecency] is on the books, we want it
enforced," Winter said. "And because of our efforts, the FCC has
stepped up and enforced the law."

Since the advent of national broadcasts on radio, it has been a
federal crime to "utter any obscene, indecent or profane language"
over the public airwaves. The FCC is authorized to enforce that law.
At the same time, the 1st Amendment says Congress "shall make no law .
. . abridging the freedom of speech."

During the 1960s, the Supreme Court agreed that, despite the 1st
Amendment, radio and TV broadcasts could be regulated because they
made use of the public airwaves.

In 1978, the court narrowly upheld the FCC's fine against a radio
station for broadcasting comedian George Carlin's "Seven Dirty Words"
monologue during the afternoon. One justice called Carlin's skit a
"sort of verbal shock treatment." However, the court's opinion
suggested that an "isolated use" of a vulgar word would not violate
the law.

But four years ago, in response to complaints from the parents groups,
the FCC announced a crackdown on the broadcast of expletives that
described "sexual or excretory" activities. The commission said that
these words were always shocking and graphic, even if used fleetingly,
and that any broadcast of them could subject the network to fines of
more than $325,000.

"Any use" of the F-word "inherently has a sexual connotation," the FCC
said. It also banned the use of the word "bulls- - - -er" on the
grounds that it "invariably invokes a coarse excretory image."

Broadcast industry leaders called this conclusion shocking. They said
it was ridiculous to say that Cher's emphatic rebuke to her critics
was an invitation to sex.

The FCC also cited singer Bono, who exulted upon winning a Golden
Globe that the award was "really, really f- - -ing brilliant!"

The FCC also has seemed inconsistent in following its own rule.

Its members made an exception for the broadcast of "Saving Private
Ryan," because the soldiers' coarse language on the D-day beaches was
integral to the story, but it refused a similar exception for coarse
language from the musicians profiled on Martin Scorsese's TV
documentary "The Blues."

Congress has strongly supported the FCC's crackdown, with lawmakers
voting to raise the fines for violations after singer Janet Jackson's
breast was briefly exposed during the Super Bowl halftime show in
2004.

CBS was fined $550,000 for that incident, but the network has won an
appeal, though the case is still pending.

Last year, the broadcast industry won a tentative victory in its fight
with the FCC when the U.S. Court of Appeals in New York blocked the
new policy against "fleeting expletives" on the grounds that it was
arbitrary, vague and possibly unconstitutional.

The Supreme Court could rule narrowly on whether the FCC had
adequately explained its shift in policy, or broadly on whether the
1st Amendment limits the government's power to police TV and radio.

The justices will hear the government's appeal Tuesday in FCC vs. Fox TV.

Savage is a Times staff writer.

david.savage at latimes.com

http://www.latimes.com/news/nationworld/politics/scotus/la-na-scotus2-2008nov02,0,6098477.story

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