Ars Technica reports
The Supreme Court ruled today on its first indecency case in 30 years. In a 5-4 decision (PDF), the justices supported the Federal Communications Commission (FCC) sanctions against Fox for a pair of live Billboard Music Award broadcasts containing some, err, "colorful metaphors." The ruling supports the FCC's ability not only to ban floods of offensive words, but also to sanction broadcasters for "fleeting expletives" uttered at live events.
What fleeting expletives were involved in this case? The court itself is too squeamish to actually use the words upon which it is ruling hinges (Justice Scalia, who wrote the majority opinion, refers to them as the "S-Word" and the "F-Word"), but neither Cher nor Nicole Richie showed the same sensitivity during their respective time at the mic in 2002 and 2003.
The FCC has long regulated dirty words on broadcast networks, especially during hours when children are likely to be listening. The most famous case to date was 1978's FCC v. Pacifica Foundation in which a radio station played George Carlin's "seven dirty words" routine on the air. The case went to the Supreme Court, which said that the FCC was allowed to sanction the station.
But the FCC was, for the next 25 years, understood to have taken a hard line against only this sort of routine cursing; an occasional one-off cuss, especially if delivered during live broadcasting, wasn't a problem. This approach had been approved by some of the justices in the Pacifica ruling, who noted that the verdict there "does not speak to cases involving the isolated use of a potentially offensive word... as distinguished from the verbal shock treatment administered by respondent here."
The policy changed in 2006, when the FCC formally decided to censure Fox over a couple of curse words uttered on the air four years before. The move sparked a lawsuit, since the FCC had never said it was changing the rules; indeed, the agency doesn't publish any "rules" for fear of becoming a censor. Instead, it reacts after the fact, usually following complaints, in a way that critics charge is "arbitrary and capricious."
Scalia and company disagreed. "The FCC's new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious," says the ruling. "The agency's reasons for expanding its enforcement activity, moreover, were entirely rational. Even when used as an expletive, the F-Word's power to insult and offend derives from its sexual meaning. And the decision to look at the patent offensiveness of even isolated uses of sexual and excretory words fits with Pacifica's context-based approach. Because the FCC's prior safe-harbor-for-single-words approach would likely lead to more widespread use, and in light of technological advances reducing the costs of bleeping offending words, it was rational for the agency to step away from its old regime."
Wait, what's that about "bleeping"? Apparently, one of the big arguments against banning "fleeting expletives" has been that it's expensive for small stations (in particular) to do this on a real-time basis; Scalia argues that it's now cheap enough not to be an issue.
Justice Breyer, who wrote the main dissenting opinion, disagreed. Although he confessed ignorance "about the prevalence of vulgarity in small towns," Breyer did point to one station manager's testimony to the FCC as evidence that a ban on fleeting expletives could decimate small time, live coverage of news and events.
"As one local station manager told the FCC, '[t]o lessen the risk posed by the new legal framework... I have directed [the station's] news staff that [our station] may no longer provide live, direct-to-air coverage' of 'live events where crowds are present... unless they affect matters of public safety or convenience. Thus, news coverage by [my station] of live events where crowds are present essentially will be limited to civil emergencies.'"
In Breyer's view, "the Federal Communications Commission failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception."
Breyer sees an obvious difference between the Carlin routine ("a monologue that deliberately and repeatedly uttered the expletives here at issue more than 100 times in one hour at a time of day when children were likely to hear the broadcast") and fleeting expletives, but Justices Thomas, Scalia, Roberts, Alito, and Kennedy disagreed. TV stations now drop the F-bomb only at their peril.
"A safe haven for families" or a First Amendment killer?
Although the ruling against Fox was made under Republican Kevin Martin, acting FCC head Michael Copps (a Democrat) praised today's decision as "a big win for families."
"The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations," he said in a statement. "Although avoiding the broadcast of indecent language when children are likely to be watching is one of those core responsibilities, few can deny the blatant coarsening of programming in recent years. The Court's decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves."
That puts Copps on the same side as the Parents Television Council, which today lauded the ruling as an "incredible victory for families." The group, which files most of the FCC complaints related to broadcasting, said that "broadcasters must abide by the terms of their licenses. They must not air indecent material before 10:00 p.m.--the hours when children are most likely to be in the viewing audience. We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families."
But critics had First Amendment concerns. Andrew Jay Schwartzman, head of the Media Access Project, called the ruling "extremely disappointing. We remain hopeful that the FCC's restrictive policies will ultimately be declared unconstitutional, but there will be several more years of uncertainty, and impaired artistic expression, while the lower courts address the First Amendment issues which the Court chose not to confront today."
The point was echoed by Adam Thierer of the Progress & Freedom Foundation, who said that the court's "failure to address the constitutional issues at stake will leave the First Amendment freedoms of both media creators and consumers in this country uncertain until another case winds its way up to the court, which could take years. Practically speaking, as Justice Thomas noted, what's the point of continuing to apply a censorship regime to one of the oldest mediums--broadcast TV and radio--when kids are flocking to unregulated mediums in large numbers? At this point, we're doing little more than protecting adults from themselves and destroying over-the-air broadcasting in the process."
So, in the end, broadcasters have more clarity about "fleeting expletives," live event coverage might be reduced, and [families have been saved/First Amendment rights have been damned]. But we still don't have the answer to Nicole Richie's probing question, "Have you ever tried to get cow shit out of a Prada purse?"