Nary a curse word allowed

Supreme Court gets tough on TV

The Associated PressApril 29, 2009 

  • In other action Tuesday, the justices:

    Ordered a review of the death sentence given in Tennessee to Gary Bradford Cone, who was convicted of beating an elderly couple to death in 1980. Prosecutors belittled Cone's claims that he was a drug addict who suffered from post-traumatic stress syndrome following military service in Vietnam. But it was later revealed that they withheld information that could substantiate Cone's claims.

    Heard a request from New York, with the backing of the other 49 states, to let states enforce their anti-discrimination laws against national banks, despite arguments from the federal government that it is the only entity that can regulate those financial institutions.

    The Associated Press

— The Supreme Court ruled narrowly Tuesday in favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television.

But in six separate opinions totaling 69 pages, the justices signaled serious concerns about the constitutionality of the Federal Communications Commission's "fleeting expletives" policy, and they called on a federal appeals court to weigh whether it violates First Amendment guarantees of free speech.

By a 5-4 vote, however, the court threw out a ruling by the 2nd U.S. Circuit Court of Appeals in New York. That court had found in favor of a Fox Television-led challenge to the FCC policy and had returned the case to the agency for a "reasoned analysis" of its tougher line on indecency.

The commission appealed to the Supreme Court instead.

Justice Antonin Scalia, writing for the court, said the FCC policy, adopted in 2004, is "neither arbitrary nor capricious."

Acting FCC Chairman Michael Copps called the decision "a big win for America's families." Copps said the "decision should reassure parents that their children can still be protected from indecent material on the nation's airwaves."

Fox was disappointed, but said it is "optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."

The FCC changed its long-standing policy after it concluded that its earlier one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

The precipitating events were live broadcasts of awards shows in which Bono, Cher and Nicole Richie let slip variations of what Scalia called Tuesday "the F- and S-words."

Under the new FCC rule, some words are considered so offensive that they always evoke sexual or excretory images. So-called fleeting expletives were not treated as indecent before the rule was instated.

In its last major broadcast indecency case, the court ruled 31 years ago that the FCC could keep curse words off the airwaves between 6 a.m. and 10 p.m.

When the court upheld the FCC regulation in 1978, television broadcasts were the only source of images available to most Americans.

Today, the Internet, cable and satellite television are in millions of homes, yet the FCC's authority extends only to broadcast television and radio, as Justice Clarence Thomas noted.

"For most consumers, traditional broadcast media programming is now bundled with cable or satellite services," he said.

Justice Ruth Bader Ginsburg, who dissented Tuesday along with the other three liberal justices, raised similar constitutional concerns. Ginsburg said that in a case that turns on government restriction of spoken words, "there is no way to hide the long shadow the First Amendment casts over what the commission has done."

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