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Supreme Court Rules that Government Can Fine for ‘Fleeting Expletives’

From The Supreme Court today upheld the Federal Communications Commission ban on one-time utterances of certain expletives over the nation’s airwaves but held out the possibility that such a policy eventually might not survive constitutional scrutiny.

The court’s narrow, 5-4 ruling said the FCC — prompted by Cher and other celebrities cursing on television — was within its powers when it changed its policy in 2004 and subjected broadcasters to fines of up to $325,000 for allowing the use of certain expletives on the air.

“The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children,” Justice Antonin Scalia wrote for the majority. “We decline to substitute our judgment for that of the agency and we find the commission’s orders neither arbitrary nor capricious.”

Fox Television and other networks had challenged the agency’s actions under the Administrative Procedures Act, saying it did not adequately explain its reason for changing its policy. The networks also challenged the rule under the First Amendment.

But the U.S. Court of Appeals for the Second Circuit in New York did not rule on the constitutional question, and the Supreme Court also declined to do so.

“Whether [the policy] is unconstitutional will be determined soon enough, perhaps in this very case,” Scalia wrote in sending the case back to the appeals court. “We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.”

Justice Clarence Thomas, who aligned with the majority on the question of whether the agency had the power to change its rule, said he was “open” to a review of the court’s precedents that allowed a “deep intrusion into the First Amendment rights of broadcaster.”

Justice Ruth Bader Ginsburg, who dissented, seemed to welcome a constitutional challenge as well. “There is no way to hide the long shadow the First Amendment casts over what the commission has done,” Ginsburg wrote. “Today’s decision does nothing to diminish that shadow.”

Chief Justice John G. Roberts, Justices Anthony M. Kennedy and Samuel A. Alito Jr., Thomas and Scalia formed the majority that upheld the FCC’s action.

Fox Television applauded the decision but made clear it, too, awaits a decision on the First Amendment issue. “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,” the company said. “FOX is looking forward to the 2nd Circuit’s consideration of the very important issues at stake in this case, and are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts.”

For years, the FCC had let one-time use of obscenities slide. But a series of events brought pressure on the agency to change its policy.

Scalia recounted some of them from the bench this morning, substituting what he said “we will call the F-word and the S-word” for the expletives themselves.

First, there was Cher, who responded to her critics after winning an award at the 2002 Billboard Music Awards by saying, to use Scalia’s alternative, “So f’em.” Celebrity Nicole Richie complained on air that getting the S-word out of a Prada purse was not so “f’ing simple,” Scalia recalled.

Those and other events — such as Janet Jackson’s exposed breast during a Super Bowl halftime, not an issue in this case — outraged the public and groups such as the Parents Television Council, which makes filing a complaint as easy as clicking on the group’s Web site.

A panel of the appeals court struck the new rules, though. It said the FCC had violated the Administrative Procedures Act by failing to “articulate a reasoned basis” for the policy change.

Scalia and the majority disagreed, saying the ban on “descriptions or depictions of sexual or excretory functions” was reasonable whether they were used literally or as expletives. He said the agency was carrying out a responsibility from Congress to patrol the airwaves for words it considers harmful to children.

“It suffices to know that children mimic the behavior they observe — or at least the behavior that is presented to them as normal and appropriate,” Scalia wrote. “Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives.”

The dissenters disagreed that the agency had adequately explained its decision. “The FCC’s answer to the question, ‘Why change?’ is, ‘We like the new policy better,’ wrote Justice Stephen G. Breyer, who was joined by Justices John Paul Stevens, David H. Souter and Ginsburg.

“This kind of answer might be perfectly satisfactory were it given by an elected official. But when given by an agency, in respect to a major change of an important policy where much more might be said, it is not sufficient.”

In all, six of the nine justices wrote opinions to explain their decisions.

It has been 30 years since the court considered the afternoon radio broadcast of the late comedian George Carlin’s “Filthy Words” monologue and decided that the government can police the nation’s airwaves without violating the First Amendment.

In FCC v. Pacifica Foundation, the court ruled that because of its “uniquely pervasive presence in the lives of all Americans,” broadcasting has “the most limited First Amendment protection” and government has the right to restrict broadcast material in order to protect children who might be watching and listening.


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