As more Americans receive their TV and radio from uncensored cable and satellite television programs and even via the Internet, the Supreme Court said Tuesday that traditional broadcasters can be required to offer families a “safe haven” from foul language.
In a 5-4 decision, the court upheld the government’s crackdown on “fleeting expletives” and said broadcasters can face heavy fines for airing the “F-word” or the “S-word” even once during prime time.
Justice Antonin Scalia said the strict ban on profanity on TV and radio was justified because of the “coarsening of public entertainment in other media, such as cable.” He also spoke of the “foul-mouthed glitteratae from Hollywood” whose use of four-letter words on live TV triggered the crackdown.
The ruling is a major setback for the broadcast industry, but not a final defeat. The court did not rule on whether the strict policy against broadcast “indecency” violated the 1st Amendment’s protection for free speech. Instead, the justices sent the case back to a federal appeals court to consider that issue.
“This means another year or two of uncertainty,” said Andrew Jay Schwartzman, a media lawyer in Washington who had urged the court to throw out the “fleeting expletives” rule.
For now, however, the ruling means broadcasters large or small can be fined as much as $325,000 for sending out over the public airwaves a single expletive.
The Federal Communications Commission announced the new policy in 2004 in response to a wave of complaints from the public. In 2002, Cher won an Artist Achievement Award from Billboard magazine and said the prize proved her critics wrong, using the F-word and adding: “I still have a job, and they don’t.” The show was seen live on Fox TV.
Federal law has long prohibited the broadcast of “any indecent” language, and the FCC decided it would deem use of the “F-word” or the “S-word” to be indecent.
Fox and the other major broadcasters sued to block the FCC from enforcing its strict policy. They argued the change was not justified, and was unconstitutional.
Scalia said the FCC “could reasonably conclude that the pervasiveness of foul language and the coarsening of public entertainment in other media … could justify more stringent regulation of broadcast programs.” He added that “technological advances have made it easier to bleep out offending words.”
The four dissenters at the high court said the FCC had not justified its zero-tolerance policy for expletives.
Justice John Paul Stevens wrote that he found it “ironic” that the FCC patrols the airwaves for these words while TV viewers are constantly asked “whether they too are battling erectile dysfunction or having trouble going to the bathroom.”
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