High Court Upholds FCC’s Right to Fine ‘Fleeting Expletives’

By Pete Winn | April 28, 2009 | 10:22 PM EDT

This Jan. 19, 2003, file photo shows singer Bono, from the group U2, arriving at the 60th Annual Golden Globe Awards in Beverly Hills, Calif. Bono, Cher and Nicole Richie let slip or perhaps purposely said variations of what Justice Antonin Scalia called Tuesday "the F- and S-words." (AP Photo/Mark J. Terrill)

(CNSNEws.com) – Family advocates praised a Supreme Court ruling Tuesday that affirms the ability of the nation’s broadcasting regulator to punish stations with tough fines when fleeting expletives -- such as the F-word – air on TV.
But at least one expert says the decision may contain the seeds of the eventual undoing of all laws against indecent broadcasting.
In the 5-4 decision, justices said the Federal Communications Commission (FCC) has the authority to enforce tough indecency standards on broadcasters even when only a single expletive is involved.
The Court overturned the 2nd U.S. Circuit Court of Appeals in New York, which had sided with Fox Television in its challenge to a 2004 FCC judgment that Fox violated the broadcast indecency law when it aired the “F-word” and “S-word” during live broadcasts of the 2002 and 2003 Billboard Music Awards shows. 
“Today’s ruling by the Supreme Court is an incredible victory for families,” said Tim Winter, president of the Parents Television Council (PTC).

“The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free.”
The PTC had filed FCC indecency complaints over the live-TV incidents at the Billboard Music Awards. PTC also submitted a “friend-of-the-court” brief in support of the FCC's enforcement.

Also in 2003, the singer Bono, as well as celebrities Cher and Nicole Richie used the F-word and the S-word during the 2003 Golden Globe  Awards.  
Tony Perkins, president of the Family Research Council, a conservative family advocacy group, also praised the Court's action.
"Today's Supreme Court ruling sends an unmistakable message to broadcasters: If you foul the public airwaves, you face the fine,” Perkins said.
Jay Sekulow, chief counsel of the American Center for Law and Justice, said the decision amounts to a “round-one victory” in what may prove to be a multi-round fight. ACLJ had filed a “friend-of-the-court” brief on behalf of 18 members of Congress. 

“This decision is important because the Court set forth the right standards to be applied and gave the FCC the discretion necessary to enforce its rules,” Sekulow told CNSNews.com. “So I think that’s positive. But it’s a narrow ruling; it sends the case back down to the lower courts.”
Rep. Trent Franks (R-Ariz.), one of the 18 congressmen who weighed in on the case, told CNSNews.com that Tuesday’s decision was “a hopeful sign.”
“Someone a long time ago said there comes that time in the life of every child when the door to childhood quietly closes forever. And after that, no mortal power on Earth can ever open it again. I think today’s ruling will give us a chance to see the innocence in our children’s lives last a little longer,” Franks said.
Scalia: FCC action ‘reasonable and rational’
Tuesday’s decision did not settle the question of whether the law banning indecency in broadcasting is constitutional – it settled only a narrow question.
Prior to 2003, the FCC allowed the occasional F-word or four-letter expletive on broadcasts without punishment.
Writing on behalf of the Court, Justice Antonin Scalia said the FCC had every right to change its mind and begin to levy fines of up to $325,000 for every infraction.

“It suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change adequately indicates,” Scalia wrote. “Under these standards, the FCC’s new policy and its order finding the broadcasts at issue actionably indecent were neither arbitrary nor capricious.”
Scalia also wrote that the agency’s reasons for expanding its enforcement were “entirely rational” – and he rejected the idea that the FCC should have to prove that children are harmed by the use of expletives before levying fines.
“Even when used as an expletive, the F-Word’s power to insult and offend derives from its sexual meaning,” Scalia wrote.
Justices John Paul Stevens, Ruth Bader Ginsburg, David Souter and Stephen Breyer all dissented.

"The F.C.C.’s shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape,” Stevens wrote. 
The Court, meanwhile, sent the case back to the 2nd Circuit Court of Appeals to decide the larger question of whether the law banning broadcast indecency between 6 a.m. and 10 p.m. is constitutional.

Pat Trueman, legal counsel for the Alliance Defense Fund, said the question is sure to come back to the Supreme Court.
“All the court looked at today was whether the FCC followed proper administrative procedure under the Administrative Procedures Act in changing how it is enforcing indecency law,” said Trueman, who is an expert on both indecency and obscenity laws.
But Trueman said he is concerned that high court may nullify its opinion of 30 years ago that laws against indecent broadcasting are constitutional – thanks in large part to conservative justice Clarence Thomas, who sided with the majority in Tuesday’s decision.
“Justice Thomas wrote a concurring opinion in the ruling saying that he questions whether or not the Supreme Court’s decision upholding the constitutionality of indecency law is valid,” Trueman told CNSNews.com.
Thomas argued that the Court’s 1978 FCC vs. Pacifica Foundation decision no longer applied -- for one reason -- because today’s tech-savvy cellphone and Internet world is different than the TV world of 30 years ago.
“The extant facts that drove this Court to subject broadcasters to unique disfavor under the First Amendment simply do not exist today,” Thomas wrote. 

But Thomas also said he believes the Pacifica decision was fundamentally flawed because it was wrongly decided – it upheld indecency law and restricted speech primarily because children are in the television audience and need to be protected.
Thomas argued that the First Amendment must be seen through the Founders’ eyes – not through the modern eyes of people wanting to restrict speech to protect people. 
“(T)he original meaning of the Constitution cannot turn on modern necessity: Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad,” Thomas wrote.
Trueman said he agreed with Thomas’ view that the original intent of the Framers of the Constitution is paramount – and that we can’t just interpret the nation's foundational document to mean whatever we want it to mean.
“He’s right, of course,” Trueman said. “When the Founders established the Constitution, they didn’t anticipate that that would limit the First Amendment. But I also believe that the Founders of this country never intended that children be exposed to the kind of material that is on television.”
Fox Television, meanwhile, said in a statement that it is optimistic it will prevail when the Court eventually considers the constitutional question surrounding indecency law.
But members of Congress, however, want the high court to look at all the facts when it takes up the constitutional issue, according to Rep. Franks.
“I hope that when the issue is dealt with squarely by the court as to the constitutionality of the FCC’s ability to regulate expletives on the airwaves, I hope the court will rule in favor of protecting our children’s innocence,” Franks said.