The high court agreed Monday to enter a dispute between broadcasters and the Federal Communications Commission (FCC) over whether TV and radio stations can be punished for the occasional, accidental use of offensive language in broadcasts. The precise legal term for such bloopers is "fleeting expletives."
At issue is a recent FCC crackdown against offensive language on the public airwaves. At the urging of broadcast corporations, a federal appeals court in New York struck down the FCC's tough new policy in June 2007.
The commission asked the high court to uphold the policy. The Supreme Court is expected to hear the case in its next term, which begins in October.
The case is about more than four-letter words. It addresses a concern among some observers about a coarsening of American culture via greater use of crude and offensive language on television and radio. At the same time, it raises fundamental questions about the nation's commitment to the First Amendment principle of free speech.
In the 1970s, comedian George Carlin made light of this difficult business in a classic 12-minute performance reciting the seven words you can't say on TV or radio. He repeated the words over and over, while exploring with his audience variations and combinations of those same forbidden utterances. The bit drew laughter and applause, but according to the US Supreme Court the monologue was offensive enough to justify a crackdown by the FCC.
In that same 1978 decision, though, the high court warned the FCC not to act against stations that accidentally broadcast the occasional dirty word. Mr. Carlin's performance was viewed as "verbal shock treatment" that qualified as "indecent" programming under FCC regulations. But a single use of an expletive would not qualify as indecent, the court said.
'Fleeting expletives' tolerated
For nearly three decades, the FCC treated the occasional "fleeting expletive" uttered on TV or radio as an unfortunate but necessary trade-off to help protect free speech in America.
Then, during the Bush administration, the FCC changed course. It announced that any use of the so-called s-word or f-word between 6 a.m. and 10 p.m. might trigger sanctions.
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.