Supreme Court Discusses Profanity Regulations

Today, the Supreme Court began preliminary discussions on indecency and profanity in broadcast television. At issue are what are referred to as "fleeting expletives," which are profanities used on the fly and are unscripted.

Prior to 2002, long-standing regulations in the Federal Communications Commission held that these were acceptable, targeting only broadcasters that permitted repeated expletives that referenced excretory and sexual functions for fines.

In 2003, this changed. In his televised acceptance speech at the 2003 Golden Globe show, U2 front man Bono used an expletive, and the FCC levied a fine against Fox in response. Although incidental and occasional profanity like this was once sanctioned, the FCC broke long-standing policy that had previously targeted only repeated and deliberate uses of profanity.

Fox Television Stations then sued the FCC, claiming that their enforcement of the policy was arbitrary and in violation of the First Amendment. The court ruled that the FCC lacked sufficient grounds to target one-time expletives, but failed to rule on the question of the First Amendment.

In heavily guarded language armored in euphemism, the Supreme Court debated on whether or not broadcasting companies like Fox could be held liable for fleeting expletives without ever actually using any themselves.

Chief Justice John G. Roberts and Justice Antonin Scalia made clear their support for the FCC, citing a drive to keep the S-word and F-word off of television on stations and during times when children and families are likely to be watching. Justice Scalia blamed the broadcasters for the general "coarsening" of society, stating also, "I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past."

However, Roberts and Scalia may not be speaking for the majority. Justice John Paul Stevens commented that the F-word, when used in some situations, can be "very funny," and also voiced concerns as to whether or not the government could ban other words that refer to sex or excrement.

"Do you think the use of the word 'dung' would be indecent?" Justice Stevens asked the government lawyer representing the FCC. "No," the lawyer replied, "because 'dung' is not as patently offensive as the S-word."

Roberts, who has young children, felt that families who watch a Hollywood awards program should not have to hear foul language.

"It is different," he said, "if a live sports broadcast picks up a foul word in the background. The context makes all the difference in the world." Under the current FCC policy, the commission could choose to fine the broadcasters for an expletive broadcast during the awards show, but could spare the sports broadcaster.

The defense of the FCC, U.S. Solicitor Gen. Gregory Garre, argued for the court to allow the new policy to go into effect. Acknowledging that although cable TV channels can have edgier programming, he called the new policies the creation of a "safety net" for families, saying, "Broadcast TV is the one place where Americans can turn on the TV at 8 o'clock and not expect to be bombarded by indecent language."

Chief Justice Roberts, agreeing, said that "all sorts of other media are available" for those who are not bothered by more open use of profanity, sex or violence.

A lawyer for Fox TV network argued that the FCC's abrupt shift in policy left broadcasters in a less than tenable position, as they can be given large fines for even the accidental broadcast of an expletive during a live event.

Carter Philips, a Washington lawyer, claimed, "At the end of the day, you are regulating the content of free speech." He also said that the Supreme Court should block the new FCC policy, either because of the potential for arbitrary enforcement or because it blocks free speech.

Chief Justice Roberts and Justice Scalia said that it was neither. "Why do you think the F-word has shock value? Because it's associated with sexual activity. That's what gives it its force," Chief Justice Roberts said.

Although lines between the justices have been drawn, no clear majority was apparent; although Justice Scalia and Chief Justice Roberts seem to support the FCC, several others do not. Justice Ruth Bader Ginsburg, appearing sympathetic to the broadcasters, said, "There appears to be no rhyme or reason for some of the [FCC] decisions," explaining that a jazz documentary was found indecent, but the television airing of the movie, Saving Private Ryan, was not.

While today's discussion tended to focus more on the technicalities of the new FCC policy, Justice Ginsburg mentioned the need to discuss the First Amendment implications of the policy, calling it "the big elephant in the room."

Several justices, however, said little, including Justice Samuel A. Alito, Jr. and Justice Anthony M. Kennedy - which makes the final decision of the court difficult to predict.

Until a decision is reached on the case, the FCC's new policy will remain on hold.