Linguistic hygiene: Conservatives Hail High Court's 'Fleeting Expletives' Ruling

Harold Schiffman hfsclpp at
Fri May 1 16:36:59 UTC 2009

Conservative groups lauded the U.S. Supreme Court for backing the new
policy of the Federal Communications Commission to punish broadcasters
for “unscripted” profanity slips, or what some refer to as “fleeting

"Today's Supreme Court decision in Fox v. FCC is a huge victory for
American families,” cheered Penny Young Nance, former policy advisor
to the FCC on indecency issues and current board member of Concerned
Women for America.

“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," she added.

On Tuesday, the Supreme Court reversed the ruling of a federal appeals
court in New York that said the FCC “failed to articulate a reasoned
basis” for the change in policy.

The new policy, voted on by the FCC in 2006, states that “unscripted”
profanity slips count as indecency and was established after the
“F-word” and the “S-word” were used during Fox’s 2002 and 2003
Billboard Music Awards shows.

While broadcasters argued that such regulations hamper their First
Amendment rights, the FCC contended that it has the authority to
ensure a certain level of decency is maintained in broadcast
standards. That includes enforcing federal restrictions on the
broadcast of "any obscene, indecent, or profane language," even speech
that is "unscripted."

"Today's decision does not say that the FCC can or should punish the
utterance of every expletive in broadcasting,” explained Robert
Peters, president of Morality in Media, in a statement Tuesday.

But he said it does uphold FCC authority to punish a broadcaster in
appropriate cases.

"Historically, the FCC has applied a 'nuisance rationale' in
determining whether content is 'indecent;' and as the Supreme Court
observed in a 1978 case, the nuisance concept 'requires consideration
of a host of variables,' including time of day, nature of the
audience, program content, etc.,” Peters stated.

"It doesn't take much imagination to think what some broadcasters
would do if they had an absolute 'right' to curse at least once in
every program.”

While the Supreme Court determined that the FCC’s new enforcement
policy is neither “arbitrary” nor “capricious,” as a court of appeals
earlier found it to be, it refused to pass judgment on whether the
FCC’s "fleeting expletives" policy is in line with First Amendment
guarantees of free speech, saying a federal appeals court should weigh
the constitutionality of the policy.

“This Court ... is one of final review, ‘not of first view,’” the high
court explained in its majority opinion.

“[W]hether it is unconstitutional, will be determined soon enough,
perhaps in this very case,” it added.

The case is FCC v. Fox Television News

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