Today the Supreme Court hears arguments that we might not be able to repeat.


At least, we might not be able to repeat every word. The court takes up a case on vulgar speech. The question is what can be broadcast on the nation's regulated airwaves.

INSKEEP: The court last faced that issue 30 years ago when it upheld a ban on the so-called seven dirty words. NPR's Nina Totenberg reports on the latest dispute.

NINA TOTENBERG: A lot was different when the court last ruled on this question. Thirty years ago, there was no cable TV, for starters. A handful of TV networks were the sole purveyors of TV fare. But even then, the Supreme Court ruled that it was the repeated and provocative use of dirty words that was punishable by the FCC. 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.

Then in 2003, 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 Awards broadcast by Fox when Cher accepted her award this way.

CHER (Singer-Songwriter; Actress; Director; Record Producer): I've also had critics for the last 40 years saying that I was on my way out every year. So, [bleep] them.

TOTENBERG: The FCC cited Fox for indecency. The network went to court and won. The Federal Court of Appeals 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 today.

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 a documentary it airs about the blues features musicians who occasionally use the F-word or the S-word, but there's no fine or punishment for airing the movie "Saving Private Ryan" in which soldiers use the same words? Lawyer Carter Phillips represents the broadcasters.

Mr. CARTER PHILLIPS (Lawyer): How is it that five unelected bureaucrats can somehow make a decision that one of those programs is perfectly legitimate and the other one is perfectly illegitimate?

TOTENBERG: 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. In truth, however, they contend that in the modern era, when consumers may have 50 or 100 channels to choose from, there's no reason to allow the FCC to censor over-the-air broadcasters while cable networks are uncensored. FCC Commission Chairman Kevin Martin.

Mr. KEVIN MARTIN (Chairman, FCC): The government has traditionally treated broadcasters differently because they're using the public airwaves. It's a public resource that they have access to.

TOTENBERG: The commission, he says, made its rules stricter because of an increase in complaints, many of them generated by the advocacy group the Parents Television Council. Its president is Tim Winter.

Mr. TIM WINTER (President, Parents Television Council): As the court said 30 years ago, even children too young to read or write have access to what's there.

TOTENBERG: Former FCC commissioners, both Republican and Democratic, counter that argument in a brief charging that the FCC is using the protection of children as an excuse for a, quote, "Victorian crusade," a crusade in which 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. FCC Chairman Martin defends his agency's policy as one that's grounded not in any hard and fast rule.

Mr. MARTIN: We have to look at the context for the underlying broadcast to determine whether or not it was appropriate to be using that language.

TOTENBERG: The broadcasters counter that punishing isolated, fleeting use of vulgar language is just another way to censor, either directly or indirectly. Small stations, for example, 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 has itself become the subject of ridicule, as in this ditty broadcast on "Family Guy."

(Soundbite of TV show "Family Guy")

(Soundbite of song "Fellas At The Freakin' FCC")

BRIAN: They're as stuffy as the stuffiest of special interest groups.

PETER: Make a joke about your bowels, and they order in the troops.

STEWIE: Any baby with a brain could tell them everybody poops!

PETER, BRIAN, & STEWIE: Take a tip, take a lesson! You'll never win by messin'

PETER: With the fellas at the freakin' FCC.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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