Supreme Court backs FCC crackdown on swearing on television

In a 5-to-4 ruling, the top court upheld the regulator's 2004 decision to hold broadcasters liable for the occasional expletive.

The US Supreme Court has delivered some welcome news to parents worried about their children hearing foul language on broadcast television.

In a 5-to-4 decision announced Tuesday, the high court said the Federal Communications Commission (FCC) did not abuse its discretion in a 2004 crackdown on indecent language on prime time TV. The majority said the FCC did not act arbitrarily or capriciously when it announced that broadcasters might be held liable for the occasional use of a single indecent word on public airwaves.

"Today's ruling by the Supreme Court is an incredible victory for families," said Tim Winter, president of the Parents Television Council, in a statement. "We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families."

The case likely sets the stage for a broader free-speech showdown in the future between government regulators and broadcasters.

The action reverses a decision of the Second US Circuit Court of Appeals in New York, which ruled the agency failed to follow proper procedures in cracking down against the increasing use of the so-called "f" word and "s" word on broadcast television.

The crackdown marked a major shift from a long-time FCC policy that broadcasters would not be punished for the occasional, isolated blooper.

Under the old policy, only repetitive and intentional use of foul language in a broadcast would trigger sanctions, and even then only if the conduct rose to the level of verbal "shock treatment."

That more forgiving policy held for 25 years. It was aimed at balancing broadcasters' First Amendment free-speech rights against the government's interest in helping parents protect their children from indecency on radio and television.

"It suffices to know that children mimic the behavior they observe," Justice Antonin Scalia wrote for the majority in upholding the FCC policy. "Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives."

The high court also criticized the Second Circuit judges for "quibbling" with the FCC's policy choices. "We decline to substitute our judgment for that of the agency," Justice Scalia said in his opinion.

"Of course, the agency must show that there are good reasons for the new policy," he wrote. "But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one."

He added, "It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better."

In dissent, Justice Stephen Breyer said the FCC failed to rely on traditional notice-and-comment procedures used by administrative agencies. He said the agency also failed to adequately explain its reasons for changing the policy.

"I would find the FCC's decision arbitrary, capricious, an abuse of discretion," he wrote.

Free-speech issues

Both the majority and dissenting justices acknowledged the new policy raises free-speech issues.

"There is no way to hide the long shadow the First Amendment casts over what the commission has done, " Justice Ruth Bader Ginsburg wrote in her dissent.

The majority judges disagreed. "It is conceivable that the commission's orders may cause some broadcasters to avoid certain language that is beyond the commission's reach under the Constitution," Justice Scalia wrote. "Whether that is so, and, if so, whether it is unconstitutional will be determined soon enough, perhaps in this very case."

Scalia added, "Meanwhile, any chilled references to excretory and sexual material surely lie at the periphery of First Amendment concern."

In his dissent, Justice John Paul Stevens took issue with the majority's suggestion that certain expletives describe a sexual or excretory function.

"As any golfer who has watched his partner shank a short approach knows, it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent," Justice Stevens wrote. "But that is the absurdity the FCC has embraced in its new approach to indecency."

While language deemed obscene enjoys no First Amendment protection and can be banned, the FCC case involves language that the agency considers indecent.

Indecent language retains some First Amendment protection and cannot be banned, but it may be subject to government regulation. How much regulation was the issue in FCC v. Fox.

The broadcasters who waged the legal challenge to the new policy – Fox, CBS, NBC, and ABC – all have expressed First Amendment concerns. Further litigation is expected.

What prompted crackdown

The case involves the unexpected use of the "f" word and "s" word on television between 6 a.m. and 10 p.m., when children are likely to be watching.

The FCC crackdown was prompted by several high-profile incidents during live music award shows involving Bono, Cher, and Nicole Richie.

In one incident, Paris Hilton and Ms. Richie appeared in a Fox broadcast of the Billboard Music Awards in December 2003 to promote their show "The Simple Life."

Hilton: "Now, Nicole, remember, this is a live show; watch the bad language."

Richie: "Okay, 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 [BLEEP] out of a Prada purse? It's not so [BLEEP-ing] simple." (In the broadcast, only the first use of the "s" word was blocked, the two other expletives weren't bleeped.)

Roughly 2.3 million viewers under 18 saw the program, and 1.1 million of them were under 12, according to the FCC.

Scalia said in his opinion that the FCC's policy was aimed at safeguarding the nation's children from the most objectionable and offensive language. The FCC had noted that technological advances made it easier to bleep out isolated vulgar expletives without significantly changing the content of the broadcast.

Breyer's dissent highlights a concern among smaller, independent broadcasters who may not be able to afford the technology to conduct real-time bleeping. In such cases, fear of government fines or other sanctions might cause some mid-level or smaller stations to avoid covering live award shows and other events, he wrote.

Scalia was joined in the majority opinion by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito.

In addition to Breyer, Stevens, and Ginsburg, Justice David Souter also dissented.