Bloomberg News

Broadcast Profanity, Nudity Get U.S. High Court Scrutiny

June 27, 2011

(Updates with comment from ABC in seventh paragraph.)

June 27 (Bloomberg) -- The U.S. Supreme Court, accepting a case that will reshape the speech rights of broadcasters, agreed to decide whether federal regulators are violating the Constitution by imposing fines for on-air profanities and nudity.

The justices today said they will review a lower court’s conclusion that the Federal Communications Commission’s indecency policy is unconstitutionally vague. The dispute stems from expletives uttered on two Fox network award shows and from a scene with a naked woman on ABC’s “NYPD Blue.”

Two appeals court rulings “preclude the commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934,” the Justice Department said in its appeal.

The case gives the high court a chance to issue a sweeping decision. News Corp.’s Fox and Walt Disney Co.’s ABC say the court should overturn decades-old rulings that give the FCC more authority to regulate programming on broadcast stations than on cable or satellite.

“We are hopeful that the court will affirm the commission’s exercise of its statutory responsibility to protect children and families from indecent broadcast programming,” Neil Grace, an FCC spokesman, said in an e-mail.

Speech Rights

“We are hopeful that the court will ultimately agree that the FCC’s indecency enforcement practices trample on the First Amendment rights of broadcasters,” Scott Grogin, a Fox spokesman, said in an interview.

The lower court “correctly decided that the FCC’s current indecency enforcement policies are unconstitutional” and the episode of NYPD Blue was not indecent, Julie Hoover, a spokeswoman for ABC, said in an interview.

One of the Supreme Court rulings the networks are attacking is a 1978 decision that said the FCC could take action against a radio station for airing comedian George Carlin’s “Seven Dirty Words” monologue during the afternoon. The court said FCC regulation was warranted because broadcast television and radio had a “uniquely pervasive presence in the lives of all Americans” and were “uniquely accessible to children.”

The justices announced they will hear the case as they took the bench to issue the final opinions of their current nine- month term. They will consider the FCC case in the term that starts in October.

Temporarily Revived

The case centers on First Amendment issues that the high court opted not to resolve when it temporarily revived the FCC’s anti-expletive policy in 2009. Justices in both the majority and dissent in that case pointed to free-speech concerns about the crackdown.

The agency began cracking down on broadcasters after celebrities used vulgar language on three live awards shows in 2002 and 2003. Regulators said in 2004 that for the first time they would punish broadcasters for so-called fleeting expletives.

Two of the incidents involved Fox. In one, at the 2002 Billboard Music Awards, Cher referred to critics of her work by saying, “F-- ‘em. I still have a job and they don’t.”

Nicole Richie used expletives as a presenter on the same show a year later. “Have you ever tried to get cow s--- out of a Prada purse?” she said. “It’s not so f---ing simple.”

Indecency Rules

The FCC concluded that the broadcasts violated its indecency regulations, though the agency said it wouldn’t impose a fine because the incidents took place before the change in policy. Federal law lets the FCC impose fines of $325,000 on each station that airs indecent material between 6 a.m. and 10 p.m.

The 2nd U.S. Circuit Court of Appeals in New York said last year that the FCC had been inconsistent in the way it applied its rules. The panel pointed to the FCC’s decision not to take action over ABC’s airing of “Saving Private Ryan,” a movie that repeatedly uses the same words.

The appeals court said broadcasters “are left to guess” whether the use of an expletive will be permitted.

In the “NYPD Blue” case, the FCC is attempting to impose penalties totaling $1.2 million on more than 40 ABC-affiliated stations. The disputed episode showed a woman’s buttocks while she was in the bathroom and then, when a young boy inadvertently walked in, a frontal view as she covered her breasts and pubic area.

The 2nd Circuit voided the ABC fine in a separate ruling in January.

The case is Federal Communications Commission v. Fox Television Stations, 10-1293.

--Editors: Jim Rubin, Laurie Asseo.

To contact the reporters on this story: Greg Stohr in Washington at gstohr@bloomberg.net; Todd Shields in Washington at tshields3@bloomberg.net.

To contact the editor responsible for this story: Mark Silva at msilva34@bloomberg.net.


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