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(AP) - The Supreme Court ruled narrowly Tuesday in
favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television, yet
stopped short of deciding whether the policy violates the Constitution.


      In six separate opinions totalling 69 pages, the justices
signaled serious concerns about the constitutionality of the
Federal Communications Commission's "fleeting expletives" policy,
but called on a federal appeals court to weigh whether it violates
First Amendment guarantees of free speech.


      By a 5-4 vote, however, the court did throw out a ruling by the
2nd U.S. Circuit Court of Appeals in New York. 


That court had found
in favor of a Fox Television-led challenge to the FCC policy, and
had returned the case to the agency for a "reasoned analysis" of
its tougher line on indecency.


      The commission appealed to the Supreme Court instead.


      Justice Antonin Scalia, writing for the court, said the FCC
policy, adopted in 2004, is "neither arbitrary nor capricious."


      The FCC changed its long-standing policy after it concluded that
a one-free-expletive rule did not make sense in the context of
keeping the air waves free of indecency when children are likely to
be watching television.


      The precipitating events were live broadcasts of awards shows in
which celebrities let slip or perhaps purposely said variations of
the F-word and S-word.


      Under the new FCC rule, some words are so offensive that they
always evoke sexual or excretory images. So-called fleeting
expletives were not treated as indecent before then.


      In its last major broadcast indecency case, the court ruled 31
years ago that the FCC could keep curse words off the airwaves
between 6 a.m. and 10 p.m.


      Justice Clarence Thomas sided with the majority Tuesday, but
nevertheless noted that the previous decision and an even earlier
case "were unconvincing when they were issued, and the passage of
time has only increased doubt regarding their continued validity."


      When the court upheld the FCC regulation in 1978, television
broadcasts were the only source of images available to most
Americans.


      Today, the Internet, cable and satellite television are in
millions of homes, yet the FCC's authority extends only to
broadcast television and radio, as Thomas noted.


      "For most consumers, traditional broadcast media programming is
now bundled with cable or satellite services," he said.


      Justice Ruth Bader Ginsburg, who dissented Tuesday along with
the other three liberal justices, similarly raised constitutional
concerns. 


Ginsburg said that in a case that turns on government
restriction of spoken words, "there is no way to hide the long
shadow the First Amendment casts over what the commission has
done."


      The nub of Tuesday's ruling was whether the FCC took a
reasonable course in changing its policy and concluding that curse
words referring to sex and excrement are always indecent.


      Scalia, joined by his four conservative colleagues, said the FCC
"could reasonably conclude that the pervasiveness of foul
language, and the coarsening of public entertainment in other
media" justified a stricter policy "so as to give conscientious
parents a relatively safe haven for their children."


      But Justice John Paul Stevens said in dissent that the FCC
missed the mark in failing to distinguish how the offending words
are used.


      "As any golfer who has watched his partner shank a short
approach knows," said Stevens, an avid golfer, "it would be
absurd to accept the suggestion that the resultant four-letter word
uttered on the golf course describes sex or excrement."


      Stevens also noted the frequent airing of television commercials
during the prime-time hours under FCC surveillance -- advertisements
which, for instance, ask viewers "whether they too are battling
erectile dysfunction or are having trouble going to the bathroom."


      Fox Television Stations, owned by Rupert Murdoch's News Corp.,
and other networks challenged the policy after the FCC singled out
use of the words by Bono, Cher and Nicole Richie during awards
programs that were aired in 2002 and 2003.


      In each instance, a variation of the f-word was used either as a
modifier - as in Bono's comment that an award was "really f---ing
brilliant" - or as a metaphor, as when Cher said, "F--- 'em," to
her critics.


      The case is FCC v. Fox Television Stations, 07-582.

Gallery

Supreme Court rules FCC can fine broadcasters for indecency

Crime, Law and Justice

The Supreme Court ruled narrowly Tuesday in
favor of a government policy that threatens broadcasters with fines over the use of even a single curse word on live television.

Court upholds FCC rules on swearing on live TV

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