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Supreme Court May Consider 'Indecency' in Broadcasting

Question of 'fleeting expletives' comes before justices

Supreme Court May Consider 'Indecency' in Broadcasting
WASHINGTON - The Los Angeles Times reports that the debate over what constitutes an "indecent" broadcast may come up before the Supreme Court this week. It would mark the first time in 30 years that the question has appeared before the court.

The court last ruled on the issue in 1978, and, as The Los Angeles Times points out, media has changed dramatically since then with cable television, the internet and radio "shock jocks."

The question for the court involves "fleeting expletives" in on-air broadcasts. Viewers of televised awards shows may be familiar with the phenomenon: U2 frontman Bono used an expletive on NBC when receiving a 2003 Golden Globe Award for best original song. Singer Cher did the same the previous year when accepting a Billboard Music Award on a Fox broadcast.

Following complaints from angry viewers, the Federal Communications Commission made the decision to fine broadcasters who aired what the agency called "isolated or fleeting expletives" during daytime and early-evening hours.

However, last year, Fox and other networks sued to block the FCC's policy. An appeals court in New York put the issue on hold.

Now, according to the Times, the FCC is asking the Supreme Court to clear the way so the agency's new policy can be enforced. The court may act on the FCC appeal as soon as today. If the justices vote to hear the case, arguments would take place in the fall.

According to the Times, the New York appellate court that blocked the FCC policy claimed the FCC was being arbitrary and vague. The appellate court noted that the FCC policy does not hand out fines for expletives uttered during news programs and movies such as Saving Private Ryan. The FCC reasons that expletives in these types of contexts are not intended to shock or titillate audiences. The appellate court also hinted that a ban on all expletives would violate the First Amendment's guarantee of free speech.

According to the Times, Solicitor General Paul D. Clement requested the Supreme Court step into the issue, saying that unless the court intervenes, the television industry will be free to air expletives during the viewing hours when it is likely that children and families are watching.

As in past debates on the subject of indecency, if the Supreme Court decides to hear the current issue, it will have to examine what constitutes vulgar speech. While current rules forbid the broadcast of what is termed "any obscene, indecent, or profane language," Congress has allowed the FCC to define what that phrase means.

In the well-known 1978 case involving comedian George Carlin's "seven dirty words" monologue, the court sided with the FCC that Carlin's routine was indecent when broadcast on the radio during the afternoon. However, the court's decision was narrow at 5-to-4.

Following the decision, according to the Times, the FCC described  "indecency" as being words or pictures that focus on "sexual or excretory organs" and that "dwell on or repeat at length" the descriptions. According to the Times, that description left a loophole for occasional vulgarities that slipped into a broadcast.

However, when the FCC was flooded by complaints by what the Times called "grass-root groups" following the airing of the Bono and Cher incidents, the agency decided to crack down on broadcasters that allowed "indecent" speech to air.

According to the Times, broadcasters insist they have no wish to be free to air "indecent" language. Their concern is that when an unscripted expletive is aired that they aren't subject to huge fines.

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Mike Albo

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