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.
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.
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.
Fox, NBC, and other broadcasters challenged the new policy in court. A federal appeals court panel in New York sided with the broadcasters, ruling that the FCC's new tougher policy was arbitrary and capricious. The judges said the government had failed to provide a reasonable explanation justifying the new policy.
In appealing to the Supreme Court, Bush administration lawyers argue that the FCC has the power to adopt a new, stricter policy. "A court must uphold an agency's revised policy so long as the agency has given a reasoned explanation for the change," writes Solicitor General Gregory Garre in his brief to the court.
The FCC justified its tougher policy by saying that the old rule permitting "fleeting expletives" would allow broadcasters to air indecent comments at any time of the day provided they were uttered one at a time. Commissioners were concerned that foul language might become increasingly common on television unless the government took a tougher stand.
In his brief, Mr. Phillips says the FCC's new policy makes broadcasters potentially liable for the blurting of a single expletive. "The FCC has, in short, abrogated its cautious enforcement policy and now willy-nilly punishes utterances that fall far short of the [earlier standard]," Phillips writes.
The new stricter policy implicates core First Amendment values of free speech, he says, at a time when filtering technologies have been developed that can help parents protect their children from objectionable broadcasts.
The use of 11 offensive words more than doubled on TV from 1998 to 2007 – with 11,000 incidents in the most recent year, according to a study by Parents Television Council (PTC).
"We are talking in the course of a decade about a 100 percent increase in profanity on public airwaves," says Tim Winter, president of the PTC, which filed a friend of the court brief supporting the FCC. "This is not cable, this is not HBO, this is prime-time over-the-air television broadcasts."
He noted that in 1998, the "f" word aired once in prime time. By 2007, it aired 1,147 times. The "s" word was uttered twice in 1998 and 364 times in 2007.
"It is really having a desensitizing effect, especially on children, even though some of these words are partially bleeped," Mr. Winter says. "The data shows just how important it is that the FCC step up and take action. If they don't we will see a rapid acceleration of the words, the images, the graphic sexual and excretory nature of the content."
In a friend of the court brief supporting Fox, the nonprofit group Center for Creative Voices in Media said the FCC's crackdown was having a chilling effect on writers, producers, actors, and authors.
"The freedom of creators to express themselves has been stifled because creators are now under a great deal of pressure to speculate as to how far their creativity and expression can reach before it constitutes an actionable complaint," the brief says. "The commission's decisions have created an unworkable, inconsistent, and confusing indecency regime, with vague and arbitrary standards."