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Court weighs ‘fleeting’ obscenities fines

WASHINGTON (BP)–The federal government asked the Supreme Court Nov. 4 to allow the punishment of broadcast TV stations for the use of “fleeting expletives.”

The oral arguments in FCC v. Fox Television Stations focused on whether the use of “fleeting expletives” in prime-time television broadcasts violated federal restrictions.

In 2004, the FCC decided the one-time use of certain words, such as the f-word and s-word, would be illegal to use on air. The decision was made after the commission received complaints about celebrities using variations of the f- and s-words during live award show broadcasts on Fox TV.

The Supreme Court accepted the case after the Second Circuit Court of Appeals in New York rejected a FCC ruling that the obscenities in the live TV programs in 2002 and 2003 were indecent. The Second Circuit ruled the FCC’s revision of a policy requiring repeated use of an obscenity before punishment was “arbitrary and capricious.” The FCC failed “to articulate a reasoned basis for its change in policy,” the court said.

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During the Nov. 4 arguments at the Supreme Court, Associate Justices Antonin Scalia and Anthony Kennedy questioned Gregory Garre, solicitor general at the Department of Justice, about the FCC’s change in policy. Garre said the commission offered a thorough explanation as to why changes occurred.

“After reconsidering its policy in this area, the commission determined that an enforcement action may be appropriate in the case of indecent language that is isolated as well as repeated,” Garre told the Supreme Court.

“The commission had never brought an enforcement action against a broadcaster for the isolated use of an expletive, and the commission made clear … that it was taking a change in regulatory course in determining that it was appropriate to bring an enforcement action where there was an isolated incident of an expletive if the context suggested that it would be indecent in that situation,” Garre said.

Garre told the high court that Americans should be able to turn on their TVs and not be bombarded by indecent language. Broadcasting networks are asking the court for the right to use expletives at any time of the day, whether it is isolated or on a repeated basis, he said.

Both TV and radio broadcasters are prohibited from using “fleeting expletives” between the hours of 6 a.m. and 10 p.m. when children are most often in the audience.

“Such harsh, unedited profanity is unacceptable for broadcast over the publicly owned airwaves when children are likely to be watching,” Tim Winter, president of Parents Television Council (PTC), said in a written release before the arguments. “If broadcasters feel they absolutely must do so, they can legally air indecent material after 10:00 p.m.”

In order to prohibit indecent language from airing live on TV broadcasts, Garre said stations could use a tape delay, which bleeps out obscenities.

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According to FCC polices, fewer restrictions are placed on news programming for the use of “fleeting expletives” because of different values at stake. Garre said in situations such as the Billboard Music Awards, it is inappropriate to use obscene language. He also said the context is different in sporting events, where expletives are used as part of post-game interviews. In those situations, the FCC would look at contextual factors to determine if language was indecent, he said.

Fox lawyer Carter Phillips told the court the FCC’s context regulation is a First Amendment violation, that the FCC does not have the right to decide what language is “indecent.”

“The problem with saying that these words [f- and s-words] trigger a further inquiry … is precisely why broadcasters will refuse to carry live or other programming where there’s any risk of them being exposed to potentially $350,000 fines for any particular misuse of the language,” Phillips told reporters after the arguments.

President Bush signed a bill into law in 2006 increasing a potential FCC fine to a maximum of $350,000 for each decency violation.

The Southern Baptist Ethics & Religious Liberty Commission, the PTC and other pro-family organizations are promoting a bill that would require the FCC to “maintain a policy that a single word or image may constitute indecent programming.” A Senate committee forwarded the bill to the full Senate, but no further action has taken place.

The court is expected to issue an opinion before it adjourns next summer.

“There was concern going into this,” said Dan Isett, director of public policy for the Parents Television Council. “Obviously, it is dangerous to predict the outcome … but I’m happy with the tone and demeanor of the justices.”
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Elizabeth Wood is an intern with the Washington bureau of Baptist Press.