High Court To Revisit Issue Of Vulgar Speech On Air

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U2 singer Bono i

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 hide caption

toggle caption Robert Mora/Getty Images
U2 singer Bono

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

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 listening.

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 uncensored.

"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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