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."

Tuesday's decision was the first Supreme Court ruling since 1978 addressing federal anti-indecency policy for broadcast companies, which face greater government regulation than cable networks. In the case three decades ago, the court upheld a fine against a radio station that had aired comedian George Carlin's "Filthy Words" monologue in the middle of the afternoon. In that ruling, the court specifically noted that the FCC was not sanctioning the "occasional expletive."

In the new ruling issued Tuesday, the justices expanded the grounds of the 1978 case to give regulators more latitude over dirty words on the airwaves. Scalia emphasized the FCC's concern for what children hear. At one point, Scalia, in rejecting the broadcasters' contention that the FCC failed to provide evidence that one-time expletives harm children, said, "It suffices to know that children mimic behavior they observe."

Tuesday's dispute traced to celebrity outbursts at award shows in the early 2000s, including at the 2003 Golden Globes when U2 lead singer Bono uttered an expletive in his acceptance speech televised on NBC. The episode led the Federal Communications Commission to reverse long-standing policy that sanctioned only repeated expletives and to declare that any one-time use of certain vulgarities associated with sexual or excretory functions could be sanctioned as indecent.

In a subsequent order, the FCC found several incidents, including the 2002 remarks by Cher, indecent. As she waved her lifetime achievement trophy, she had said, "People have been telling me I'm on the way out every year, right? So (expletive) 'em."

Scalia repeated Cher's routine from the bench Tuesday with dramatic flair but using, rather than her expletive, the euphemism "f-word."

When the 2nd Circuit ruled that the FCC lacked sufficient grounds to suddenly target one-time expletives, it said, "For decades broadcasters relied on the FCC's restrained approach to indecency regulation and its consistent rejection of arguments that isolated expletives were indecent. While the FCC is free to change its previously settled view on this issue, it must provide a reasoned basis for that change."

The 2nd Circuit did not rule directly on the First Amendment question yet strongly suggested the policy might be unconstitutional. That matter would now be subject to further litigation.

The Supreme Court case was argued on November 4. While broadcasters said the new FCC policy chilled free speech, groups such as the Parents Television Council countered that broadcast TV is uniquely available to children, compared with cable, and should be protected from indecent outbursts.

In the appeal to the high court, the Justice Department, representing the FCC, had rejected the lower court's assessment that the policy was arbitrary. Justice Department lawyers said the commission sought to protect young viewers from the "first blow" of offensive comments, not only from vulgarities repeated over and over, as was the situation in the Carlin case.

The government said that among the FCC criteria for determining whether something was indecent is whether the words were used to titillate or pander to the audience. Under such criteria, the expletives during the World War II movie Saving Private Ryan, for example, were not deemed indecent, but the outbursts of Cher and Bono were.

During oral arguments, however, some justices, including Ginsburg, complained that the policy seemed unpredictable. "Seeing it in operation, there seems to be no rhyme or reason for some of the decisions that the commission has made," she said, noting that a documentary about jazz history was found indecent.

Washington lawyer Carter Phillips, representing Fox Television Stations, had urged the justices to keep in mind the free-speech context even as they considered whether the FCC had failed to justify its policy. "We are talking about content-based restrictions on free speech," he had told the justices.

Phillips also had said the FCC's policy was having a "chilling effect" on broadcasters, particularly in their airing of live entertainment and sporting events. If the prohibition on "fleeting expletives" is not reversed, he told the justices, "It's going to just get worse."

The disputed FCC policy was developed under the leadership of then-FCC chairman Kevin Martin, an appointee of President George W. Bush who has since stepped down. Martin had complained that broadcast TV was trying to compete with cable, becoming "edgier" and "less family friendly." FCC membership is currently in flux as President Obama makes new appointments.