Supreme Court ruling bans broadcast 'fleeting expletives'

WASHINGTON -- A divided Supreme Court on Tuesday upheld a federal prohibition on the one-time use of expletives in a case arising partly from an expletive uttered by Cher at a Billboard Music Awards show in 2002.

The ruling, by a 5-4 vote and written by Justice Antonin Scalia, endorsed a Bush administration Federal Communications Commission policy against isolated outbursts of, as Scalia said from the bench, the "f-word" and "s-word."

The ruling does not resolve a lingering First Amendment challenge to the 2004 policy that is likely to be subject to further lower court proceedings.

Tuesday's decision reversed a ruling by the U.S. Court of Appeals for the 2nd Circuit that had said the FCC's decision to sanction "fleeting expletives" was arbitrary and capricious under federal law. That lower court had agreed with Fox Television Stations, which broadcast the Billboard awards, that such isolated utterances are not as potentially harmful to viewers as are other uses of sexual and excretory expressions long deemed "indecent" and banned by federal regulators.

Other broadcast networks had joined in the challenge, saying the policy was especially chilling for live awards shows and sporting events.

"Even isolated utterances can be made in … vulgar and shocking manner, and can constitute harmful first blows to children," Scalia wrote in the opinion that was signed by his fellow conservatives. The decision was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Samuel Alito.

Dissenting were liberal Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. In a statement by Breyer, signed by the others, they said the FCC "failed adequately to explain why it changed its indecency policy from a policy permitting a single 'fleeting use' of an expletive, to a policy that made no such exception."

The policy dispute had been shrouded by partisan differences and moral overtones of what is best for young viewers. Breyer added in his dissenting statement that while the law allows administrative agencies to change their policies, it "does not permit them to make policy choices for purely political reasons nor to rest them primarily upon unexplained policy preferences."