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Court Rules FCC May Pursue Fines for On-air Profanity

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.

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    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.