Supreme Court Says FCC Can Fine Broadcasters for 'Fleeting Expletives'
Seven years after Cher swore on live television and more than 30 years after it last made a ruling on broadcast indecency, the Supreme Court today upheld the federal government's right to crack down on TV networks' airing of expletives. But it stopped short of ruling on a separate challenge as to whether the regulations infringed the First Amendment, leaving the decision to a lower court—and frustrating free-speech advocates.
The Supreme Court voted 5 to 4 for the Federal Communications Commission's right to regulate even "fleeting expletives," the commission's shorthand that describes when a curse word is suddenly blurted out on live television. Those weren't treated as indecent until the FCC changed its policy in 2004 as part of a crackdown triggered by Janet Jackson's momentary partial nudity at the 2004 Super Bowl halftime show.
The case that came before the Supreme Court today began after incidents in which Cher swore on live television in 2002 and Nicole Richie did the same in 2003, both of which brought reprimands from the FCC. Although the FCC didn't fine the Fox TV network for airing the broadcasts, it declared that the actions were offensive. Fox challenged the commission's decision. Now, in explaining the court's decision to back the FCC's regulations, Justice Antonin Scalia called the commission's policy "neither arbitrary nor capricious," overturning a previous ruling made by a New York federal appeals court.
Critics argue that upholding the regulations will hurt smaller broadcasters, which can't necessarily afford the same kind of screening equipment that their larger peers can to prevent aired indecencies. But Scalia indicated that the FCC's policy in the Fox case "says little about how the commission would treat smaller broadcasters who cannot afford screening equipment."
Meanwhile, the dissenters in the ruling say that they worry about what precedent this sets for free speech. "There is no way to hide the long shadow the First Amendment casts over what the commission has done," Justice Ruth Bader Ginsburg, who voted against the decision, said today. Rather than explicitly take up the issue of free speech, the court asked for a federal appeals court to examine the issue instead, meaning it could be months before a decision is reached on the constitutionality of the FCC's regulations. In the meantime, broadcasters will have to be more careful than ever to keep performers' lips zipped.
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