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High court hears FCC obscenity case

WASHINGTON — In the staid red velvet, white marble setting of the Supreme Court, the justices talked about dirty words Tuesday — but used none.
As they cloaked their language in euphemisms, their varying questions also concealed how they would rule in the dispute that will affect what words are allowed on broadcast TV.

The case traces to a 2003 Golden Globes show in which U2 lead singer Bono used an expletive in his televised acceptance speech. The Federal Communications Commission reversed long-standing policy targeting only repeated expletives and said any one-time use of vulgarities associated with sexual or excretory functions could be sanctioned.

The FCC then declared indecent a 2002 outburst by Cher on a Fox awards show and several other incidents. Fox Television Stations sued, saying the new limit on “fleeting expletives” was arbitrary and violated the First Amendment. A lower court ruled the FCC lacked sufficient grounds to target one-time expletives yet did not rule on the First Amendment question.

None of the justices, nor the two lawyers who argued, used the dirty words at issue. They instead used gentler alternatives and the single first letters of particular expletives.

FIND MORE STORIES IN: United States | United States Supreme Court | Federal Communications Commission | First Amendment | Golden Globes | Bono | Antonin Scalia | Samuel Alito | Cher | Saving Private Ryan | Fox Television Stations
Some justices appeared to favor one side, but many did not clearly signal their sentiment. Clarence Thomas and Samuel Alito asked nothing. That makes it hard to call the case or to predict whether the justices will resolve the First Amendment issue along with the limited one on which the lower court ruled.

U.S. Solicitor General Gregory Garre emphasized that regulators examine objectionable words in context and consider whether the material is used to titillate or for shock value — such as vulgarities by celebrities on TV. News programs, he said, are not likely to be sanctioned.

Justice Ruth Bader Ginsburg appeared sympathetic to broadcasters. “There seems to be no rhyme or reason for some of the (FCC) decisions,” she said, noting that a jazz documentary was found indecent, but the TV airing of the movie Saving Private Ryan was not.

Justice John Paul Stevens asked if “dung” would be indecent and if it mattered if an expression was “hilarious.”

Garre said “dung” would probably not be “patently offensive” and suggested humor would not save a vulgar expression from being sanctioned.

He added that even when a certain four-letter word associated with sex was not used literally it would be indecent because “it inevitably conjures up a core sexual image.”

“Which is, indeed, why it’s used,” interjected Antonin Scalia, who was among the justices seeming most open to the FCC. Scalia suggested TV had led to a coarsening of language in America.

Chief Justice John Roberts, also appearing to side with the FCC, noted some expletives are used simply because they are associated with sexual or excretory activity. “That’s what gives it its force,” he said.

Carter Phillips, representing Fox Television Stations, said the policy is having a “chilling effect,” especially on the airing of live shows and sporting events. If the ban isn’t lifted, he said, “It’s going to just get worse.”

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