WASHINGTON — The Supreme Court this week may reopen for the first time in more than 30 years the debate over what qualifies as an "indecent" broadcast.
The media environment has changed dramatically since 1978, when the court last ruled on this issue: Today's viewers and listeners are exposed to the more freewheeling cable TV, Internet and "shock jocks" on satellite radio.
The issue before the court now is delicately described as the problem of "fleeting expletives" in over-the-air broadcasts, which are still regulated. TV viewers who watch the entertainment industry's awards shows may be familiar with the phenomenon.
"This is really, really f---ing brilliant," rock singer Bono exclaimed when accepting a 2003 Golden Globes Award for the best original song. His comment went live on NBC.
Upon receiving a Billboard Music Award for career achievement, Cher said the honor proved her critics wrong. "So f--- 'em. I still have a job and they don't," the singer-actress said on Fox TV.
After receiving complaints from viewers, the Federal Communications Commission moved to crack down on broadcasters who air "isolated or fleeting expletives" during daytime and early evening hours.
Last year, Fox and the other networks sued to block the new policy, and an appeals court in New York put it on hold.
Now, the FCC is asking the high court to clear the way so the crackdown can be enforced. The justices may act on the agency's appeal as soon as Monday. If they vote to hear FCC vs. Fox TV, arguments will be heard in the fall.
The appellate judges in New York said the new policy was arbitrary and vague. It does not, for example, say all expletives will trigger fines from the FCC regardless of the circumstances. News programs and movies such as "Saving Private Ryan" have been given exemptions. Including profanity from soldiers on the D-day beaches was not intended to shock or titillate, the FCC said, but help "convey the horrors of war."
At the same time, the appellate judges hinted that a true ban on all broadcast expletives would violate the 1st Amendment's free-speech guarantee.
With the agency handcuffed, U.S. Solicitor Gen. Paul D. Clement asked the Supreme Court to intervene and to revive the FCC's new rule. Unless the high court acts, he said, the TV industry will have complete freedom to air expletives during the hours children and families typically are watching.
