The US Supreme Court upheld a government crackdown on profanity on television, a policy that subjects broadcasters to fines for airing a single expletive blurted out on a live show.
In its first ruling on broadcast indecency standards in more than 30 years, the high court handed a victory on Tuesday to the Federal Communications Commission (FCC), which adopted the crackdown against the one-time use of profanity on live TV when children are likely to be watching.
The case stemmed from an FCC decision in 2006 that found News Corp’s Fox TV network violated decency rules when singer Cher blurted out an expletive during the 2002 Billboard Music Awards broadcast and actress Nicole Richie used two expletives during the 2003 awards.
No fines were imposed, but Fox challenged the decision. A US appeals court in New York struck down the new policy as “arbitrary and capricious” and sent the case back to the FCC for a more reasoned explanation of its policy.
The FCC, under the administration of former president George W. Bush, had embarked on a crackdown of indecent content on broadcast TV and radio after pop star Janet Jackson briefly exposed her bare breast during the 2004 broadcast of the Super Bowl halftime show.
By a 5-4 vote and splitting along conservative-liberal lines, the justices upheld the FCC’s new policy under the Administrative Procedure Act.
The high court did not rule on Fox’s constitutional challenge to the policy on free speech grounds. The Supreme Court sent that issue back to the appeals court.
“While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case,” Fox said in a statement.
The network said it was optimistic that it would ultimately prevail on the free speech issue. If Fox wins before the appeals court, it would be up to the FCC and the administration of US President Barack Obama to decide whether to take the matter back to the Supreme Court, legal sources said.
Justice Antonin Scalia, in summarizing the court’s majority ruling from the bench, upheld the new policy as rational.
“Even when used as an expletive, the F-word’s power to insult and offend derives from its sexual meaning,” Scalia said.
Government lawyers in the case have said the policy covered so-called “fleeting expletives” such as the “F-word” and the “S-word” that denote “sexual or excretory activities” respectively.
Critics said the FCC had been inconsistent in enforcing its new policy. It allowed the TV broadcast of the movie Saving Private Ryan even though it contained the same expletives.
The policy applies only to broadcasts. Neither cable nor satellite channels are subject to FCC content regulation.
Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented.
“The FCC’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape,” Stevens wrote.
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