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Supreme Court considers FCC's rein on foul words

The federal crackdown on the rising use of expletives on TV has sparked free-speech concerns.

By Staff writer of The Christian Science Monitor / November 4, 2008


Careful and polite use of language is the usual path to a winning argument at the US Supreme Court. But on Tuesday, the highest court in the land may reverberate to the sound of two of the crudest four-letter words in the English language.

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At issue before the justices is a high-stakes dispute over government attempts to keep foul language off America's broadcast airwaves. To be more precise, the dispute involves the blurted use of the "f" word and the "s" word during live television broadcasts in prime time.

If written legal briefs are any indication of what is in store for Tuesday's oral argument, Supreme Court advocate Carter Phillips, one of America's most respected lawyers, is preparing to deliver an R-rated presentation. His 62-page brief submitted on behalf of Fox Television Stations uses the "f" word or some variation of it 30 times. He uses the "s" word 23 times.

What's all the cursing about?

In 2004, the Federal Communications Commission sought to crack down on the occasional use of foul language on television between 6 a.m. and 10 p.m. when children are most likely to be watching. The crackdown marked a major shift from a longtime FCC policy that broadcasters would not be punished for the occasional, isolated blooper.

Under the old policy, only repetitive and intentional use of indecent language in a broadcast would trigger FCC sanctions and, even then, only if the conduct rose to the level of verbal "shock treatment."

For nearly 30 years, that more forgiving standard established a balance between broadcasters' First Amendment free-speech rights and the government's interest in helping parents protect their children from indecency on radio and television.

The FCC changed its policy after a series of incidents on live music-award shows. The offenders include Cher, Bono, and Nicole Richie.

In December 2003, a Fox broadcast of the Billboard Music Awards included an appearance by Paris Hilton and Ms. Richie to promote their show "The Simple Life."

Hilton: "Now, Nicole, remember, this is a live show, watch the bad language."

Richie: "OK, God."

Hilton: "It feels so good to be standing here tonight."

Richie: "Yeah, instead of standing in mud and [live audio blocked]. Why do they even call it 'The Simple Life?' Have you ever tried to get cow [expletive] out of a Prada purse? It's not so [expletive] simple." (In the broadcast only the first use of the "s" word was blocked, the two other expletives were not.)

Roughly 2.3 million viewers under 18 saw the program and 1.1 million were under 12, according to the government.

The FCC concluded that the program included indecent language. The agency has the power to fine broadcasters and/or revoke their license. No punishment was imposed under the new policy, but broadcasters were warned that they would be punished in the future.