[lg policy] US High court weighs policy against curse words on TV

Harold Schiffman hfsclpp at GMAIL.COM
Wed Jan 11 15:54:01 UTC 2012

High court weighs policy against curse words on TV

January 10, 2012, 11:25 a.m.

The Supreme Court debated whether policing curse words and nudity on
broadcast television makes sense in the cable era, with one justice
suggesting it's a moot point at a time when broadcast TV seems headed
the way of “vinyl records and 8-track tapes.”

The justices engaged in colorful give-and-take Tuesday with lawyers
for the government and television networks over government regulation
of the airwaves during hours when children are likely to be watching.
Some justices said they were troubled by inconsistent standards that
allowed certain words and displays in some contexts, but not in

One example frequently cited by the networks was the Federal
Communications Commission's decision not to punish ABC's airing of
“Saving Private Ryan,” with its strong language, while objecting to
the same words when uttered by celebrities in live awards show

Justice Elena Kagan said the FCC policy was, “Nobody can use dirty
words or nudity except Steven Spielberg,” director of the World War II
movie. Other justices seemed more open to maintaining the current
rules because they allow parents to put their children in front of the
television without having to worry they will be bombarded by

Chief Justice John Roberts, the only member of the court with young
children, hammered away at that point, saying he wondered why
broadcasters would oppose regulation of a few channels so that parents
can know that children “are not going to hear the S-word, the F-word”
or see nudity.

But at least one justice, Samuel Alito, talked about how rapidly
technological change has effectively consigned vinyl records and
8-tracks to the scrap heap, suggesting that in a rapidly changing
universe, time will take care of the dispute.

The First Amendment case pits the Obama administration against the
nation's television networks. The material at issue includes the
isolated use of expletives as well as fines against broadcasters who
showed a woman's nude buttocks on a 2003 episode of ABC's “NYPD Blue.”

The broadcasters want the court to overturn a 1978 decision that
upheld the Federal Communications Commission's authority to regulate
both radio and television content, at least during the hours when
children are likely to be watching or listening. That period includes
the prime-time hours before 10 p.m.

At the very least, the networks say the FCC's current policy is too
hard to figure out, penalizing the use of particular curse words in
some instances, but not in others.

The administration said that even with the explosion of entertainment
options, broadcast programming remains dominant. It also needs to be
kept as a dependable “safe haven” of milder programming, the
administration said.

Solicitor General Donald Verrilli Jr. said that if the court were to
overrule its 33-year-old decision, “the risk of a race to the bottom
is real.”

But Carter Phillips, representing the networks in connection with the
awards shows, said that little would change because broadcasters would
remain sensitive to advertisers and viewers who don't want the
airwaves filled with dirty words and nudity.

Nearly nine out of 10 households subscribe to cable or satellite
television and viewers can switch between broadcast and other channels
by pushing a button on their remote controls. “People have really lost
track of which stations are broadcast stations,” said Paul Smith, a
partner with the Jenner and Block law firm who has argued First
Amendment cases at the Supreme Court.

But supporters of regulation said the media companies that own
television networks also have movie studios, cable channels and other
outlets where they are free to run whatever they wish.

Even on television, the rules only apply between 6 a.m. and 10 p.m.,
noted Tim Winter, president of the pro-regulation Parents Television
Council. “Radio and television broadcasters already have the ability
to be as indecent as they want after 10 p.m.”

The FCC policy under attack flowed from the 1978 Pacifica decision,
which upheld the FCC's reprimand of a New York radio station for
airing a George Carlin monologue containing a 12-minute string of
expletives in the middle of the afternoon.

For many years, the FCC did not take action against broadcasters for
one-time uses of curse words. But, following several awards shows with
cursing celebrities in 2002 and 2003, the FCC toughened its
longstanding policy after it concluded that a one-free-expletive rule
did not make sense in the context of keeping the airwaves free of
indecency when children are likely to be watching television.

The 2nd U.S. Circuit Court of Appeals in New York declared the FCC
policy unconstitutionally vague.

The Billboard Music Awards aired on Fox in both 2002 and 2003. Cher
used the F-word the first year and reality TV personality Nicole
Richie uttered the F-word and S-word a year later. The FCC did not
issue a fine in either case, but said the broadcasts violated its

The “NYPD Blue” episode led to fines only for stations in the Central
and Mountain time zones, where the show aired at 9 p.m., a more
child-friendly hour than the show's 10 p.m. time slot in the East.

Justice Sonia Sotomayor is not taking part in the case because she
served on the appeals court during its consideration of some of the
issues involved.

The case is FCC v. Fox Television Stations, 10-1293.


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