FCC's obscenity rule to get Supreme Court's ear

The tribunal agrees to take a case about the commission's crackdown on stations that air expletives.

from the March 18, 2008 edition

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The change was prompted in part by comments made during three televised awards programs. At the 2003 Golden Globe Awards, rock singer Bono expressed his appreciation for winning best original song. He told the audience: "This is really, really [bleeping] brilliant. Really, really great."

The Billboard Music Awards produced two consecutive years of fleeting expletives. In 2002, Cher, while accepting an artist achievement award, lashed out at critics by using an expletive. In 2003, Paris Hilton and Nicole Richie made a few comments about their Fox show "The Simple Life" before presenting an award. "Why do they even call it 'The Simple Life'?" Ms. Richie asked. "Have you ever tried to get cow [bleep] out of a Prada purse? It's not so [bleeping] simple."

FCC board members were not amused. Nor were many members of the public. Complaints poured in.

The FCC concluded that such comments were graphic, shocking, and gratuitous. It noted that large numbers of children were watching.

In announcing its new rule, the FCC said it would no longer grant an automatic exemption for fleeting expletives. If the context of the expletive rendered it indecent, the TV or radio station could be punished with a fine or even loss of its license.

Broadcasters sued to overturn the new rule. A panel of the Second US Circuit Court of Appeals in New York sided 2 to 1 with the broadcasters, declaring that the FCC's rule was arbitrary and capricious. The court sent the issue back to the FCC to either change its policy or offer a better justification for it.

Grounds of the FCC's appeal

In its appeal to the Supreme Court, the FCC and the Bush administration argued that the new, tougher regulations comply with the high court's 1978 ruling and are within the FCC's power to enact and enforce. But the appeals court's remand order was forcing the FCC's hand, government lawyers said.

"The decision ... attempts to coerce the Commission to choose between allowing one free use of any expletive no matter how offensive or gratuitous, or adopting a blanket prohibition on any use of expletives," wrote Solicitor General Paul Clement in his brief.

Lawyers for major broadcasting companies had urged the Supreme Court to bypass the case, saying the appeals court action – simply remanding the case back to the FCC – did not warrant high-court scrutiny at this stage of the litigation.

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