US High Court To Revisit Issue Of Vulgar Speech On Air

Harold Schiffman hfsclpp at
Thu Nov 6 14:38:17 UTC 2008

High Court To Revisit Issue Of Vulgar Speech On Air
by Nina Totenberg

 U2 singer Bono used the "F-word" in an acceptance speech at the 2003
Golden Globe Awards. The FCC later began fining broadcasters for even
fleeting and isolated instances of vulgar language at live events.
Robert Mora/Getty Images

 Preview: Supreme Court 2008-09
 Morning Edition, November 4, 2008 · On Tuesday, the U.S. Supreme
Court is stepping back into the issue of vulgar speech on the nation's
regulated airwaves. The last time the court ruled on the matter 30
years ago, the justices upheld a ban on airing the so-called seven
dirty words before 10 p.m., when children are likely to be watching or

A lot was different when the court last weighed in. In 1978, a handful
of networks were the prime purveyors of TV fare; most American homes
didn't have cable TV. But even then, the Supreme Court ruled that it
was the repeated and provocative use of dirty words that was
punishable by the Federal Communications Commission.

The agency then adopted a rule using that approach, regulating with a
light hand, aiming penalties at language meant to shock and not at the
fleeting use of an expletive.

The Last Straw

Then, in 2003, U2 singer Bono used the "F-word" at the Golden Globe
Awards ceremony in a light-hearted remark about how delighted he was
to win. That apparently was the straw that broke the Bush
administration's back. The FCC changed its policy and started fining
broadcasters for even fleeting and isolated instances of vulgar
language at live events.

The test case was the 2004 Billboard Music Awards ceremony, broadcast
by Fox, when Cher accepted her award this way: "I've also had critics
who said I was on my way out over 40 years, so f—- 'em."

The FCC cited Fox for indecency; the network went to court and won.
The federal appeals court based in New York ruled that the agency had
acted arbitrarily, that it had failed to articulate a reasoned
explanation for changing its policy. And, the court said, it doubted
any explanation could pass constitutional muster.

The Bush administration appealed to the U.S. Supreme Court, and the
justices will hear arguments Tuesday.

A Double Standard?

On one side are the broadcasters, who ridicule the FCC for what they
call an incomprehensible approach. Why is it, they ask, that a PBS
station is fined because it airs a documentary featuring blues
musicians who occasionally use the F-word or "s—-," but there is no
fine or punishment for airing the movie Saving Private Ryan, in which
soldiers use the same words?

"How is it that five unelected bureaucrats can somehow make a decision
that one of these programs is perfectly legitimate and the other one
is perfectly illegitimate?" asks Carter Phillips, a lawyer
representing the broadcasters.

The broadcasters argue that the FCC should at least go back to the old
rule that, until 2004, did not punish isolated use of an expletive.
But in truth, they contend that in the modern era, when consumers may
have 50 or 100 channels to choose from, there is no reason to allow
the FCC to censor over-the-air broadcasters while cable networks are

"The government has traditionally treated broadcasters differently
because they're using the public airwaves," says FCC Chairman Kevin
Martin. "It's a public resource they have access to."

Responding To Complaints

The commission, Martin says, made its rules stricter because of an
increase in complaints — many of them generated by the Parents
Television Council, an advocacy group. The group's president, Tim
Winter, notes: "As the court has said 30 years ago, even children too
young to read or write have access to what's there."

Former FCC commissioners — both Republican and Democratic — counter
that argument in a brief accusing the agency of using child protection
as an excuse for a "Victorian crusade." In the brief, they say, "The
definition of indecency is expanded beyond its original conception,
the penalties are magnified for even minor violations, and respected
TV programs, movies and noncommercial documentaries are targeted."

Martin defends his agency's policy, saying, "We have to look at
context for the underlying broadcast to determine whether or not it
was appropriate to be using that language."

The broadcasters counter that punishing isolated, fleeting use of
vulgar language is just another way to censor, either directly or
indirectly. Small stations censor themselves, refusing to broadcast
public events, because the risk of fines and litigation is too great.
And big stations and networks worry about broadcasting even sports
events, where curse words are often heard from fans or players.
Indeed, according to the broadcasters, the FCC has some 200 such
complaints waiting to be acted on after the Supreme Court rules.

On cable, meanwhile, the FCC itself has become the subject of
ridicule, as in this ditty broadcast on Family Guy:

They're as stuffy as the stuffiest of special interest groups.

Make a joke about your bowels, and they order in the troops.

Any baby with a brain could tell them everybody poops.

Take a trip, take a lesson, you'll never win by messin'

With the fellas at the freakin' FCC.

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