The case focuses on a policy implemented by the Federal Communications Commission in 2006 that allows the agency to impose heavy fines on broadcasters for “fleeting expletives” — one time occurrences of foul language, the Associated Press reported.
The FCC, backed by the Bush administration, brought the case to the high court after an appellate court nullified the policy in a case between the agency and Fox Broadcasting Corp.
“The Commission, Congress and most importantly, parents, understand that protecting our children is our greatest responsibility,” FCC Chairman Kevin Martin said in a prepared statement, according to the AP. “I continue to believe we have an obligation then to enforce laws restricting indecent language on television and radio when children are in the audience.”
Fox was also pleased at the court’s decision to hear the case. In a statement, Fox spokesman Scott Grogin told the AP that the court’s opinion will “give us the opportunity to argue that the FCC’s expanded enforcement of the indecency law is unconstitutional in today’s diverse media marketplace where parents have access to a variety of tools to monitor their children’s television viewing.”
At issue in the Fox case are two separate instances in which celebrities uttered variations of four-letter expletives during live broadcasts of the Billboard Music Awards. At the 2002 awards show, singer Cher said “[expletive] ’em” to her critics. A year later, reality show star Nicole Richie used two expletives during on-stage banter with fellow reality show celebrity Paris Hilton.
Fox was not fined for the incidents, but an FCC ruling in March of 2006 found that the network had violated decency rules and could be fined for future violations.
Fox went on to challenge the ruling in court, arguing that the agency’s decency standard was unclear, violated free-speech protections and that the rulings had contradicted earlier findings, according to a Reuters synopsis.
On June 4, the New York Court of Appeals for the Second Circuit ruled on the side of the broadcasters, arguing that the FCC had not justified its reasoning for changing its rules, the AP reported. The appeals court also suggested that the policy may violate the First Amendment.
The appeals court referred the case back to the agency for further review, but stated that it was “skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster.”
The FCC decided to change its policy after several instances of vulgarity during live programs, including an expletive uttered at the 2003 Golden Globes awards and in continued response to a 2004 Super Bowl halftime show in which singer Janet Jackson’s breast was exposed, according to Reuters.
In 2006, Congress voted to increase fines for indecency against broadcasters tenfold.
The last time the Supreme Court heard an indecency case was in 1978, when it sided with the FCC in stating that the deliberate, repeated utterance of profanities constituted indecency. The court has not yet ruled on whether one-time occurrences of an expletive could be subject to FCC fines.
Fox, along with ABC, NBC and CBS have opposed the FCC regulations, arguing that it represents an unwarranted and sudden shift in policy. The networks also argue that the fines represent an undue burden not imposed on cable TV, Internet and satellite radio, according to the Los Angeles Times.
The Supreme Court will hear the case in the fall.