Supreme Court: FCC Can Fine Fleeting Expletives

According to the Washington Post, the nation's highest court upheld a Federal Communications Commission ban on one-time "fleeting expletives" such as Bono's comments when he won the Best Original Song award at the 2003 Golden Globes.

"The Commission could reasonably conclude," the Court said in its majority opinion, "that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a safe haven for their children."

The narrow 5-4 ruling means that networks such as NBC, ABC, and especially Fox, which has developed a reputation for pushing the limits of acceptable profanity on television, are no longer immune from fines for utterances of one-time profanities--and the fines are pretty steep, about $325,000 per each word.

In an appeal of a lower court ruling, the networks challenged the FCC policy on First Amendment grounds. Yet the U.S. Court of Appeals for the Second Circuit in New York did not rule on constitutional grounds, and neither did the Supreme Court.

Naturally, the nine Justices split on the issue, with the majority of them arguing in favor of the ban while the remainder argued against it. In their opinions, their views range from legal-constitutional approaches to libertarian leanings.

"Whether the policy is unconstitutional will be determined soon enough, perhaps in this very case," Scalia wrote in a ruling asserting the lower court's decision not to rule on the constitutional validity of the FCC's policy. "We see no reason to abandon our usual procedures in a rush to judgment without a lower court ruling. We decline to address the constitutional question at this time."

Justice Clarence Thomas was more diplomatic.

"I am open to a review of the court's precedent that allowed a deep intrusion of the First Amendment rights of the broadcaster."

The conscience of the Court was Justice Ruth Bader Ginsberg, who ruminated on the implications of the ban on civil liberties and free speech.

"There is no way to hide the long shadow that the First Amendment casts over what the commission has done," she wrote. "Today's decision does nothing to dismiss that shadow."

For their part, the networks were respectful of the Court's decision, but expressed their desire to have the constitutional question answered at some point.

"While we would have preferred a victory on Administrative Procedure Act grounds, more important to FOX is the fundamental constitutional issues at the heart of this case. FOX looks forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and are more optimistic that we will ultimately prevail when the First Amendment issues are fully issued before the courts."

Fleeting expletives have been a problem for the FCC. In 2002, Cher uttered the F-word during the Billboard Music Awards ceremony in response to critics who derided her musical style. Yet the case that put a fire under pressure groups such as the Parents Television Council had little to do with words and much to do with visuals--Janet Jackson's 2004 "wardrobe malfunction" incident during the Super Bowl halftime show. Since then, the Council has been pressuring the government to crack down on obscenities on television such as exposure of breasts and profane utterances.

Although obscenity is not protected per se by the Constitution, the Court has had a long history of wrestling with First Amendment issues regarding obscenity in broadcast and radio. In 1979, the Court ruled that the broadcast of George Carlin's "Seven Dirty Words" monologue on Pacifica Radio was "uniquely pervasive in the lives of all Americans" and paved the way for restrictions on broadcasting of certain material.