FCC Can Penalize Networks for Profanity, Says High Court

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Washington—In a narrow vote, the Supreme Court ruled earlier this week that regulators can impose strict penalties, including fines and sanctions, against television networks which broadcast so-called “fleeting expletives.”

Fleeting expletives are isolated instances of the use of profanity, whether scripted or unscripted. The Federal Communications Commission, which issues polices regarding profanity, had developed a new policy in 2004 which declared that even a single use of an expletive on broadcast television or radio could be punishable by law. The Supreme Court upheld the commission’s power to enforce that policy, despite an appeals court having called it “arbitrary and capricious.”

In part, the arguments discussed whether or not expletives need refer to a specific sex or bodily function act in order to be considered “profane” or “indecent.”

“Even when used as an expletive,” wrote Justice Antonin Scalia in the majority opinion, “the F-word’s power to insult and offend derives from its sexual meaning.”

The acting chairman of the FCC, Michael Copps, said that the ruling was a “big win for America’s families.”

The commission had targeted all of the networks in separate instances of profanity use, including the Golden Globes awards show, broadcast on NBC, the Billboard Music Awards show, which aired on Fox, the crime drama “NYPD Blue” from ABC, and the CBS morning news program “The Early Show.”

Justice John Paul Stevens, who was in dissent, said that the the FCC was not adequately taking into account the context in which the expletives were uttered. Additionally, he accused the commission of hypocrisy, asking why they were cracking down on words which had a “tenuous relationship” to sexual and bodily functions, when commercials aired during peak family-viewing hours “frequently ask viewers whether they, too, are battle erectile dysfunction or are having trouble going to the bathroom.”

The Supreme Court, which first weighed in on the profanity issue in 1978, in the legendary decision calling comedian George Carlin’s “seven dirty words” monologue obscene, did not touch the First Amendment aspect of the current case.

Whether or not the FCC’s policy would punish those who should be protected by a Constitutional right to free speech is an issue that will be decided by another federal appeals court.

Conservative groups, such as the Parents Television Council, applauded the ruling, while organizations representing artists and performers agreed with the Media Access Project’s Andrew Jay Schwartzman, who called the move “extremely disappointing.”

 

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