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The Federal Communications Commission may penalize broadcasters for the isolated or fleeting use of expletives on the air. That's according to a ruling today from the U.S. Supreme Court. But the five-to-four decision was based on federal administrative law, leaving open the question of whether imposing fines in such cases would violate the Constitution.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG: It was quite a scene in the courtroom this morning with Justice Antonin Scalia announcing his opinion for the court and loudly talking about the F-word and the S-word, as he put it. The other justices sat stony-faced. Only 89-year-old Justice John Paul Stevens chuckled to himself in amusement.
The issue before the justices was this: 30 years ago the court ruled that the FCC could punish Pacifica Radio for its broadcast of a monologue by comedian George Carlin because of its repeated and provocative use of the "Seven Dirty Words." But the court also said that the isolated or fleeting use of expletives was another matter.
So the Federal Communications Commission adopted a rule that penalized broadcasters for language meant to shock, but did not penalize the use of fleeting expletives.
During the Bush administration, though, the FCC changed its decades-old policy and said it would fine broadcasters for even the fleeting use of vulgar language. The test case was the 2002 Billboard Awards broadcast by Fox, when Cher accepted her award this way.
(Soundbite of TV show)
(Soundbite of applause)
CHER (Singer): I've also had critics for the last 40 years saying that I was on my way out every year. So (beep) them.
TOTENBERG: The FCC cited Fox for indecency, and the network went to court. A federal appeals court invalidated the new rule because the lower court said that the agency had acted arbitrarily. Today the U.S. Supreme Court disagreed by a five-to-four vote. But the Court left open the question of whether the FCC rule violates the Constitution. Jay Sekulow, who heads the conservative American Center for Law and Justice, applauded the decision.
Mr. JAY SEKULOW (American Center for Law and Justice): The federal law prohibits the broadcasting of indecent language. That's what the law says. And today the court said that the FCC had the authority to enforce that.
TOTENBERG: But Sekulow observed that new appointees on the FCC in the Obama administration might now reverse the policy again or refine it further to make fines less likely. And he conceded that if there's a constitutional challenge to the existing regulation, that challenge could well succeed.
Carter Phillips, who represented Fox in the Supreme Court, said the network will challenge the constitutionality of the rule. He notes that the legal and technological landscape has changed greatly in the 30 years since the Supreme Court said there could be different rules allowing censorship of the broadcast media.
Mr. CARTER PHILLIPS (Attorney, Fox Network): It's at least curious that if you have a TV show in which you, in fact, bleep out an expletive at nine o'clock at night and then that same TV show is rebroadcast on somebody's computer at 9:30, you can do it without the bleep. And it could be the same teenage kid watching it. And the notion that the First Amendment somehow blinks at that kind of a regulatory scheme strikes me as bizarre.
TOTENBERG: Perhaps more important than the court's ruling on dirty words today was its decision giving agencies more power to change policies without intervention from the courts. The decision applies to agencies that make rules on everything from car safety to the environment. UCLA law professor Eugene Volokh.
Professor EUGENE VOLOKH (Law, UCLA): Its immediate effect is it helps the Obama administration because it means that administrative agency decisions issued by agencies whose appointees will be increasingly Obama appointees are going to be given more freedom by courts.
TOTENBERG: Writing for the court majority today, Justice Scalia said that an agency need not demonstrate to a court's satisfaction, that the new policy is better than the old one. It need only show that the agency itself believes the new policy is better than the old one. And it must give some good reasons.
In a separate part of today's ruling, Justice Scalia said there's no reason to allow judges to second guess an agency's reasonable decision. But Justice Kennedy, who would be the fifth vote for stripping courts of most power in overseeing agency action, did not join that part of the decision.
There were six separate opinions filed in today's case. Justice Stevens, in a dissenting footnote observed, it is ironic to say the least, that while the FCC patrols the airwaves for words that have a tenuous relationship with sex and excrement, commercials broadcast during primetime hours frequently ask viewers whether they, too, are battling erectile dysfunction or are having trouble going to the bathroom.
Nina Totenberg, NPR News, Washington.
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