Supreme Court backs FCC crackdown on swearing on television
In a 5-to-4 ruling, the top court upheld the regulator's 2004 decision to hold broadcasters liable for the occasional expletive.
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Scalia added, "Meanwhile, any chilled references to excretory and sexual material surely lie at the periphery of First Amendment concern."Skip to next paragraph
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In his dissent, Justice John Paul Stevens took issue with the majority's suggestion that certain expletives describe a sexual or excretory function.
"As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent," Justice Stevens wrote. "But that is the absurdity the FCC has embraced in its new approach to indecency."
While language deemed obscene enjoys no First Amendment protection and can be banned, the FCC case involves language that the agency considers indecent.
Indecent language retains some First Amendment protection and cannot be banned, but it may be subject to government regulation. How much regulation was the issue in FCC v. Fox.
What prompted crackdown
The case involves the unexpected use of the "f" word and "s" word on television between 6 a.m. and 10 p.m., when children are likely to be watching.
Hilton: "Now, Nicole, remember, this is a live show; watch the bad language."
Richie: "Okay, 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 [BLEEP] out of a Prada purse? It's not so [BLEEP-ing] simple." (In the broadcast, only the first use of the "s" word was blocked, the two other expletives weren't bleeped.)
Roughly 2.3 million viewers under 18 saw the program, and 1.1 million of them were under 12, according to the FCC.
Scalia said in his opinion that the FCC's policy was aimed at safeguarding the nation's children from the most objectionable and offensive language. The FCC had noted that technological advances made it easier to bleep out isolated vulgar expletives without significantly changing the content of the broadcast.
Breyer's dissent highlights a concern among smaller, independent broadcasters who may not be able to afford the technology to conduct real-time bleeping. In such cases, fear of government fines or other sanctions might cause some mid-level or smaller stations to avoid covering live award shows and other events, he wrote.
In addition to Breyer, Stevens, and Ginsburg, Justice David Souter also dissented.