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Court Rules FCC May Pursue Fines for On-air Profanity

April 28, 2009 at 12:00 AM EDT
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The Supreme Court ruled Tuesday that the government could threaten broadcasters with fines over the use of even a single profanity on live television, yet stopped short of ruling whether the policy violates the Constitution. Marcia Coyle of the National Law Journal recaps the day in court.

RAY SUAREZ: In a 5-4 ruling today, the court said the government could fine broadcast networks for airing fleeting expletives, in this case, single curse words uttered by celebrities during award ceremonies in 2002 and 2003.

But the justices sent questions raised in the case about the First Amendment back to the lower courts to decide.

Here to tell us more is Marcia Coyle of the National Law Journal.

And, Marcia, I thought this kind of thing was just subject to regulation by the FCC. How did it end up in the Supreme Court?

MARCIA COYLE, National Law Journal: Well, Ray, in 1978, the Supreme Court said that the FCC, the government, could regulate indecent speech that refers to sexual or excretory activity or organs.

But up until, from 1978 until 2004, the FCC did not regulate single expletives or fleeting expletives, as they’ve been known recently. That question was left open in the 1978 Supreme Court decision.

But in 2004, the FCC changed its mind. Based on complaints involving the Billboard Music Awards TV show in which Cher and actresses Paris Hilton and Nicole Richie used the f-word and the s-word. The FCC received complaints, re-examined its policy, decided, No more. We’re going to ban them and fine broadcasters that use them.

Fox Television, along with other television broadcasters, sued and challenged the ban. Lower court held that the FCC did not give a good explanation for its change in policy and had acted arbitrarily and capriciously.

Agencies have lots of authority to make policy, but they can’t make policy based on political reasons or policy preferences. They cannot act in an arbitrary and capricious manner.

The issue before the Supreme Court that came out of the lower court is whether this policy change was arbitrary or capricious.

'Fleeting' expletives versus script

RAY SUAREZ: The majority said no. Justice Scalia wrote the opinion. What did he say?

MARCIA COYLE: He said that he felt it was rational. The majority felt it was rational for the agency to step away from that old policy for several reasons.

One, the agency felt that, unless it banned single expletives, the use of them would multiply widely on the airwaves. It also felt that technology advances had lowered the cost of bleeping technology and that broadcasters could bleep out the words.

And he said also that the agency didn't have to show that its new policy was better than the old policy. It just had to have good reasons and it had to believe that the new policy was better than the old.

RAY SUAREZ: Now, it's interesting. By talking about fleeting expletives, it seems like they were trying to draw a distinction between scripted, dramatic or dialogue use of these words and things that would happen in a live event or an offhand comment or an exclamation. But Justice Scalia didn't buy that distinction.

MARCIA COYLE: No. There are exceptions to the ban. For example, in newscasts, if you're interviewing somebody, or it's part of a dramatic live coverage of an event on a newscast.

But here he said that the use of the f-word, you know, whether it's mentioned once or repeated, has as much power to offend because of its sexual and excretory nature.

Fines can be heavy

RAY SUAREZ: Now, what about the First Amendment? Wasn't that part of the grounds on which Fox and other broadcasters pushed back?

MARCIA COYLE: They did, but the Supreme Court decided that it would not take up that issue now, because the lower court had not looked at it. And the Supreme Court generally likes issues to first be worked out in the lower courts, so the case will go back.

But the point you raise, too, about the meaning of the words here was very much a part of the dissenters. Justice Stevens, who actually wrote the 1978 Pacifica decision involving George Carlin's "Filthy Word" monologue, he pointed out -- he used a great example, I thought, to show that not -- he said, Pacifica was very limited to words that describe sexual or excretory actions or functions, but not -- the use of the f-word and the s-word, he said, is not always used in that fashion.

The FCC is now saying that those words in any context, in any form always describe sex or excretion. He said, as any golfer who has watched a partner shank a short approach knows, the four-letter resulting word uttered on the golf course does not describe sex or excretion.

RAY SUAREZ: And briefly before we move on, the fines can be pretty heavy, can't they?

MARCIA COYLE: Very heavy, and the broadcasters pointed that out. The broadcasters also were worried about local television stations, public television stations that may not only not be able to afford fines, but can't afford the new technology for bleeping. And they worried that what might happen is, instead of buying that technology or going into debt for it, they will reduce coverage of local events and live events, in particular.

Fair lending law

RAY SUAREZ: Now, today in the court there was also argument over the regulation of banks and whether states or the federal government has the upper hand.

MARCIA COYLE: This is a very closely watched case. The state of New York had preliminary data showing that a national bank or several national banks in New York might be violating New York's fair lending law, discriminating on the basis of race in mortgage lending.

And when the New York attorney general went to the banks to seek more information, more data from them, they ran into a roadblock in the form of the comptroller of the currency of the United States.

And there the comptroller is saying, basically, we regulate national banks. You cannot enforce your laws, your discrimination laws, your consumer protection laws when it comes to national banks. We're the sole regulator.

As I said, it's being watched closely by civil rights groups, consumer groups who are worried that states which have for many years enforced their laws concurrently with federal regulation in the same areas of discrimination and consumer protection may be blocked now. And they also think that the comptroller of the currency does not have a vigorous record of enforcing these laws against national banks.

RAY SUAREZ: Well, closely watched. And when we have a result, we'll have you back. Marcia Coyle, good to see you.

MARCIA COYLE: And that's -- thank you, Ray. And that will be soon. Tomorrow is the last day of oral arguments, and then we're moving into an intense period in the Supreme Court where they're writing opinions that will be coming out until the end of June.

RAY SUAREZ: Good to have you with us.

MARCIA COYLE: Thank you, Ray.