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High Court Grapples With Vulgar TV Language

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High Court Grapples With Vulgar TV Language


High Court Grapples With Vulgar TV Language

High Court Grapples With Vulgar TV Language

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The Supreme Court has heard a case testing whether the federal government may punish the fleeting use of a dirty word in a broadcast.


Dirty words were front and center today at the usually staid Supreme Court. The justices were hearing arguments about a new FCC regulation. It punishes broadcasters with heavy fines for the fleeting use of vulgar language. NPR's legal affairs correspondent Nina Totenberg has our story, without any of the offending words.

NINA TOTENBERG: Thirty years ago, following a Supreme Court ruling, the FCC adopted a light touch and aimed penalties only at repeated bad language meant to shock, not at isolated or fleeting use of expletives. That changed in 2004 when the FCC began punishing broadcasters for the isolated use of bad words. Among the first to be cited was FOX for its live broadcast of the Billboard Awards where singer Cher used the F word.

(Soundbite of Cher's speech at the Billboard Awards)

CHER (Singer): I've also had critics for the last 40 years saying that I was on my way out every year. Right, so - bleep - 'em.

TOTENBERG: FOX challenged the FCC's new policy in court and won. The Bush administration appealed to the Supreme Court, which heard arguments today. Solicitor General Greg Garr told the justices the FCC is fully justified in punishing broadcasters for curse words because the commission is charged with preventing the use of language that describes sexual and excretory activities on the regulated airwaves.

Justice Ginsburg: There seems to be no rhyme or reason for some of the commission's decisions. As an example, she noted that the commission allowed the broadcast of "Saving Private Ryan," which is filled with expletives, but it punished a small TV station for a documentary on jazz history which had interviews containing some of the same words.

Chief Justice Roberts noted that the FCC has allowed these words on the early morning news, so he asked, if he they had a news report about Cher winning the Billboard Award, could they use her actual language? Answer: yes. The difference is that more children are watching the actual awards in prime time, and everyone acknowledges that the F word is one of the most graphic, explicit, and vulgar words for sexual activity.

Justice Stevens: Isn't the word often used with no sexual connotation? Answer: It can be, but it inevitably conjures up a sexual connotation. Justice Stevens: When the court ruled on this 30 years ago, wasn't the rationale for allowing stricter regulation the fact that there was a scarcity of channels, while now we have cable and the Internet?

Answer: Regulated broadcast TV is the one place today where Americans can turn on the TV at eight o'clock and not be bombarded with indecent language. It would be a remarkable thing to allow the networks to use even isolated expletives.

What if, for example, Big Bird dropped the F-bomb on Sesame Street? Justice Bryer: TV covers lots of live events. You deal with a cross-section of humanity. My experience is some parts of that cross-section swear. What are the broadcasters to do? Answer: They can institute a tape delay system.

Justice Scalia: They had a five-second delay at the Billboard Awards, didn't they? Answer: They had only one person working the bleeping machine. Justice Stevens: Maybe I shouldn't ask this, but isn't it ever appropriate for the commission to take into consideration whether the remark is really hilarious? Justice Scalia: What? Bawdy jokes are OK as long as they're really good?

Next up was lawyer Carter Phillips, representing FOX Broadcasting. The FCC's new rule, he argued, is quintessential censorship, in which five unelected bureaucrats decide whether in context any use of a single expletive should be fined. The FCC is charged, he noted, with preventing descriptions of sexual or excretory activity, not punishing curse words.

Chief Justice Roberts, angrily: Why do you think the F word has such shocking value? Because of its association with sexual activity. Answer: There's no evidence of that. People use euphemisms for sex all the time, and nobody blinks.

Returning to the censorship question, lawyer Philips said, if you're dealing a local station broadcasting a local football game and some student uses the F word... Chief Justice Robertson interrupted: That's where context comes in. It's one thing to use the word in "Saving Private Ryan" when your arm gets blown off. It's another thing to do it when you're standing up at an awards ceremony.

Answer: You can't seriously believe that the average nine-year old, who's probably more horrified at the arm being blown off, has more of a reaction to that word in the context of an awards ceremony.

Chief Justice Roberts: In one context, it's completely gratuitous, and the other it's not. Justice Stevens: Do you think society is more or less tolerant of this language today? Answer: More tolerant. Justice Scalia smirked. Do you think your clients have anything to do with that? Answer: Very little. Just go to a baseball game, Justice Scalia. You hear these words everywhere.

Nina Totenberg, NPR News Washington.

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High Court To Revisit Issue Of Vulgar Speech On Air

High Court To Revisit Issue Of Vulgar Speech On Air

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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

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Robert Mora/Getty Images

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.