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SCOTUS: FCC fines thrown out by Supreme Court

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For many years, the agency did not take action against broadcasters for one-time uses of curse words. But after several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television.

But Kennedy, in the ruling throwing out the fines, said the commission did not adequately explain that under the new policy "a fleeting expletive or a brief shot of nudity could be actionably indecent."

The stepped-up indecency enforcement, which included issuing record fines for violations, also was spurred in part by widespread outrage following Janet Jackson's breast-baring performance during the 2004 Super Bowl halftime show on CBS.

That incident and the FCC's proposed fine of $550,000 are not part of the current case. The government has an appeal pending of a lower court ruling that threw out the fine in that case.

The 2004 Super Bowl took place before the FCC later that year laid out its new policy and the possibility of fines for even one-time utterances of certain words.

Tim Winter, president of the Parents Television Council, said he read the new decision as a "green light" for the FCC to rule against broadcasters in the many pending complaints of indecent material that aired after the FCC explained its new policy.

"Once again the Supreme Court has ruled against the networks in their yearslong campaign to obliterate broadcast decency standards," Winter said.

The material at issue in Thursday's decision included the isolated use of expletives as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of "NYPD Blue."

In December 2002, singer Cher used the phrase "F--- 'em" during the Billboard Music Awards show on the Fox television network. A month later, U2 lead singer Bono uttered the phrase "f------ brilliant" during NBC's broadcast of the Golden Globes awards show. During the December 2003 Billboard awards show on Fox, reality show star Nicole Richie said, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------simple."

But the challenge went beyond just the penalties for the use of fleeting expletives.

The broadcasters wanted the court to free them from all regulation of content around the clock. The court's 1978 Pacifica decision upheld the FCC's reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.

Justice Ruth Bader Ginsburg said in a brief opinion that she would have overturned the Pacifica ruling, which she called wrong even when it was decided. Justice Sonia Sotomayor did not take part in the current case because she was involved in an earlier version while sitting as an appeals court judge in New York.

The case is FCC v. Fox, 10-1293

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