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Supreme Court hears 'fleeting' expletive case

Justices debate FCC policy on TV profanity

By Jerry Markon
Washington Post / November 5, 2008
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WASHINGTON - It's not every day that a top lawyer for the Bush administration, standing before the black-robed justices of the Supreme Court, invokes the specter of "Big Bird dropping the F-bomb" on Sesame Street.

Yet it was that kind of morning in the august courtroom, where the justices yesterday weighed a new government policy that can punish television networks for a onetime, or "fleeting," expletive, as opposed to a stream of profanities. The case came about after singer Cher dismissed her critics by saying "(expletive) 'em" during a live 2002 awards show, and celebrity Nicole Richie told millions of viewers in 2003: "Have you ever tried to get cow (expletive) out of a Prada purse? It's not so (expletive) simple."

The justices made their usual majestic entrance, and the argument began with the typically sober discussion of weighty legal issues. But the lawyers were soon jumping through verbal hoops to avoid saying the words at issue, trying everything from "these words" to "expletives," "swearing," "the F-word," "the F-bomb" and "freaking."

Chief Justice John G. Roberts Jr. debated with a lawyer for Rupert Murdoch's Fox network, which aired the Cher and Richie remarks, whether such words inherently denote offensive "sexual or excretory activities" - the definition the Federal Communications Commission's used to cite Fox for broadcasting indecent material.

Roberts asked, "Why do you think the F-word has" such power? ". . . Because it's associated with sexual or excretory activity. That's what gives it its force."

The tension in the crowded courtroom gave way to laughter when 88-year-old Justice John Paul Stevens asked whether the FCC would sanction a broadcaster if the indecent remark "was really funny." Solicitor General Gregory Garre said it might depend on the context.

"So bawdy jokes are OK, if they're really good," Justice Antonin Scalia cracked, to more laughter.

Stevens also asked whether the word "dung" would be indecent (Garre said probably not) and Justice Stephen G. Breyer added the observation that during live television, "you're dealing with a cross-section of humanity, and my experience is that some sections of that cross-section swear."

But nary a curse word was heard amid a debate that soon turned to the serious issues at hand. The case culminated a battle over what can be said on radio and television, part of a broader culture clash between those who see increasing profanity on the airwaves as harming children and debasing the nation's values, and others who believe the government's crackdown threatens free speech and artistic expression.

The government has imposed decency standards on broadcasters since the 1920s, and currently the FCC prohibits the broadcast of sexual or excretory content on over-the-air radio and television between the hours of 6 a.m. and 10 p.m., when children are most likely to be in the audience.

Even with those rules, there have been periodic flare-ups over what can be said on the air. The issue really heated up after the split-second television exposure of singer Janet Jackson's breast during the 2004 Super Bowl halftime show.

Hundreds of thousands of viewers complained, prompting the FCC to change a long-standing policy that only repeated use of on-air expletives would be punished. The commission didn't fine Fox for the Cher and Richie incidents because the policy was new but made it clear that further "fleeting," or onetime, use of obscenities could draw punishment.

Television networks protested, but Congress in 2006 raised the maximum indecency fine from $32,500 to $325,000. President Bush signed the bill, saying that network television "too often pushed the bounds of decency."

Fox filed suit, arguing that the FCC's policy change was arbitrary and that the designation of the fleeting F-words as indecent violated the broadcaster's First Amendment rights. A federal appeals court in New York agreed, issuing a 2-1 decision last year that broadly questioned whether the FCC still has the right to police the airwaves for offensive language. (The FCC has no authority over cable and satellite radio and TV.)

The Bush administration petitioned the Supreme Court, which agreed to hear its first substantial case on broadcast indecency since a 1978 decision that said comedian George Carlin's "seven dirty words" monologue was indecent. That narrow decision, written by Stevens, spelled out that the court had not decided the issue of "an occasional expletive." Garre urged the justices to back the FCC, saying that upholding the appellate ruling could lead to "a world where the networks are free to use expletives 24 hours a day," including, he said, the Big Bird "F-bomb" scenario.

Carter Phillips, an attorney for Fox, questioned what he called the FCC's shifting definitions of indecency and raised the specter of stations being afraid to broadcast live events for fear that someone might curse.

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