The Supreme Court and Words Too Indecent for Children

By Mark Walsh — November 04, 2008 2 min read
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The U.S. Supreme Court today took up a major case about indecency on broadcast television, with the Bush administration arguing in support of government regulation of the fleeting use of expletives over the airwaves in the name of protecting children.

“Most Americans still get their information and entertainment from broadcast TV,” said U.S. Solicitor General Gregory G. Garre, who was representing the government in Federal Communications Commission v. Fox Television Stations Inc. (Case No. 07-582). “Broadcast TV is extremely accessible to children because all they have to do is turn it on. ... And broadcast television is still broadcast in a way that invades the home, the place -- the one place where people typically don’t expect to have uninvited, offensive ...”

He was cut off by a justice’s question. But what he meant was uninvited, offensive words such as the “f-word” and “s-word,” as Mr. Garre had earlier put it. (There was some promise that those words would be uttered in unexpurgated form in court today, but that never happened.)

The case stems from some on-air expletives, such as the f-word and s-word, from the mouths of celebrities such as Bono (of U2), Cher, and Nicole Richie on the “Golden Globes” and “Billboard Music Awards” shows in 2003 and 2004.

Those instances prompted the FCC to re-examine whether isolated use of “fleeting expletives” on broadcast television violated its definition of indecency. The commission decided that they did, and Fox and other broadcasters appealed in the courts. The U.S. Court of Appeals for the 2nd Circuit, in New York City, invalidated the commission’s action, ruling that the change was “arbitrary and capricious” under a federal administrative procedure law.

The Supreme Court granted review, and both sides agree First Amendment free-speech principles are also involved.

Mr. Garre said that under the rules favored by broadcasters, they would be free to use expletives 24 hours a day, “going from the extreme example of Big Bird dropping the F-bomb on ‘Sesame Street,’ to the example of using that word during ‘Jeopardy’ or opening the episode of ‘American Idol.’ ”

But the broadcast industry isn’t seeking blanket permission to air such words. In fact, even its own standards generally bar their use during late-night hours, when the indecency rules don’t apply. But the industry doesn’t want to be subject to federal fines for the fleeting use of expletives on live television.

Carter G. Phillips, the lawyer representing Fox and other broadcasters, told the justices that “society is significantly more tolerant of these words today that it was 30 years ago.”

Justice Antonin Scalia asked him, “Do you think your clients have had anything to do with that?”

Very little, Mr. Phillips responded. “Go to a baseball game, Justice Scalia,” he said. “You hear these words every time you go to a ballgame.”

“You do, indeed, but you don’t have them presented as something that is normal in polite company, which is what happens when it comes out in television shows,” Justice Scalia said. “This is a coarsening of matters that is produced by the shows. I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the

The briefs in the case are available at the American Bar Association’s Supreme Court preview site.

A version of this news article first appeared in The School Law Blog.