A slim majority of the Supreme Court ruled that the Federal Communications Commission has the power to regulate the use of "fleeting expletives" on television, such as those uttered during awards shows by Bono, Nicole Richie and Cher.
Justice Antonin Scalia wrote in the 5 to 4 decision released Tuesday that the FCC was correct in punishing the “foul-mouthed glitteratae from Hollywood” by sanctioning networks and local broadcasters for the use of a singe indecent word on TV.
“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,” Scalia wrote in a statement.
Acting FCC Chairman Michael Copps, one of two Democrats on the three-person commission, also praised the decision. “Today’s Supreme Court decision…is a big win for America’s families,” Copps said in a statement. “The Court recognized that when broadcasters are granted free and exclusive use of a valuable public resource, they incur enforceable public interest obligations.”
However, the Supreme Court did not address whether the FCC’s actions violated broadcasters’ constitutional right to free speech. The justices said a federal appeals court should decide the constitutionality of the FCC’s policy.
Tuesday’s decision overturns a 2007 ruling by the 2nd U.S. Circuit Court of Appeals in favor of Fox Television in the network’s case against the FCC. The appeals court said that the FCC acted “arbitrarily and capriciously” in 2006 when it threatened to fine the Fox for obscenities uttered by Cher and Richie during broadcasts of the “Billboard Music Awards” in 2002 and 2003, respectively. The FCC appealed the case to the Supreme Court.
The FCC first revised its policy on indecency after Bono said the phrase “fucking brilliant” while accepting a Golden Globe during a live broadcast on NBC in 2003. The Commission said the word “f—” — in any context — “inherently has a sexual connotation” and therefore is actionable. NBC’s challenge to the ruling has yet to be resolved.
CBS’ challenge to the $550,000 fined levied by the FCC for Janet Jackson’s “wardrobe malfunction” during the 2004 Super Bowl also remains unresolved.