Should broadcasters be able to air whatever the fuck they want? asks WSJ's Amy Schatz...
Nine years after Cher used a swear word during a live awards show, the U.S. Supreme Court is finally addressing the constitutional issues behind that question. On Tuesday, the court will consider whether the Federal Communications Commission's efforts to police the U.S. airwaves for dirty words and images violate broadcasters' right to free speech and due process. The court's decision, expected by June, could affect the broadcast-television industry, which has been losing viewers to cable channels, Internet video and other forms of entertainment that by law can't be touched by the FCC's indecency cops.
If the court sides with broadcasters, it might not just free them from the threat of multimillion-dollar indecency fines, but also lead to some networks experimenting with racier content or language that is commonplace on cable-channel rivals such as AMC or FX, industry officials say. The cases before the high court involve Walt Disney Co.'s ABC and News Corp.'s Fox networks. News Corp. also owns The Wall Street Journal. ABC was hit with a $1.4 million fine after showing the bare bottom of actress Charlotte Ross in a 2003 episode of "NYPD Blue." ABC argued that the episode wasn't indecent because Ms. Ross's bottom wasn't a "sexual organ" and there was no frontal nudity.
The FCC warned Fox for the Cher incident in December 2002 after she used an expletive during the Billboard Music Awards and for a similar case involving reality-show personality Nicole Richie. Fox, which wasn't fined, argues that it didn't run afoul of indecency rules because it didn't know the celebrities would swear and hadn't intentionally aired the words. Previously, the FCC had given broadcasters a pass for airing live, unscripted profanities, but that changed in 2003, after U2 singer Bono blurted out the F-word during the Golden Globe awards. Under pressure from watchdog groups, the commission said it would begin fining broadcasters for airing profanities, even those that were aired during live broadcasts.
Supreme Court precedents, in particular a ruling in 1978 involving the "Seven Dirty Words" act by comedian George Carlin, allow the FCC to regulate broadcast indecency during the hours between 6 a.m. and 10 p.m., when children are likely to be in the audience. Broadcasters can receive a fine of as much as $325,000 for each profanity or indecent image aired. Station owners say the FCC's enforcement is so inconsistent it is almost impossible to figure what is permissible and what isn't. "It's clarity that we're looking for more than anything else. If you tell us what the rules are, we'll follow the rules," says Dennis Wharton, a spokesman for the National Association of Broadcasters.
In 2005, the commission said it was acceptable for ABC to air an unedited version of "Saving Private Ryan," which contained multiple uses of profanities, because the movie provided a historical view of war. A year later, the FCC fined a Public Broadcasting Service station for airing a documentary produced by Martin Scorsese, "The Blues," in which several interviewees used profanities. FCC officials determined the dirty words weren't necessary to "express any particular viewpoint." Lower courts found the FCC's enforcement inconsistent and said it could chill the exercise of free speech, failing a basic First Amendment test.
In its appeal to the Supreme Court, the commission argues that "the indecency regime serves the compelling governmental interest of protecting children." The FCC says a "rigid" rule banning certain words outright would be worse than the current case-by-case approach because officials wouldn't be able to consider the context of dirty language and would be forced into "permitting broadcast of material that is highly offensive but does not include the prohibited words." The commission mostly stopped issuing indecency fines in 2006 after Fox, ABC and CBS Corp. sued over the issue. Since then, more than 1.2 million indecency complaints have piled up at the FCC awaiting court resolution.
The use of obscenities on TV has gone up dramatically in recent years. There were 1,227 bleeped and unbleeped utterances of "fuck" or "shit" on prime-time network broadcasts last year, compared with three times in 1998, according to the Parents Television Council, a group that advocates for what it calls "family-friendly" TV. The council has filed a friend-of-the-court brief in the current case. "Not long ago, it was nearly unimaginable to hear these words edited into prime-time broadcast programming even once," said Tim Winter, the organization's president. "If the broadcast networks get their way, you can bet we'll be hearing them a lot more."
The Supreme Court took a crack at the issue in 2009, ruling 5-4 that the agency had properly followed its procedures. This week's arguments mark the first time the core constitutional questions have come before the justices. If they side with broadcasters, the FCC could be forced to start from scratch in crafting indecency enforcement rules and toss thousands of complaints similar to the Fox "fleeting expletives case." Pending cases involve actress Diane Keaton's use of the F-bomb on ABC's "Good Morning America" in 2007 and several episodes of the Fox cartoon "Family Guy," which has drawn complaints for showing its cartoon characters' naked behinds or other raunchy material.
A victory could also open the door for the networks to air saltier language or images during prime time to better compete with rival shows on cable stations, which aren't regulated. "You may see a little pushing at the edges," says Harry F. Cole, a broadcast attorney at Fletcher, Heald & Hildreth PLC, who was part of the defense team in the 1978 "Seven Dirty Words" case. "If the Supreme Court rejects the FCC's position, broadcasters should and, I think, will—feel more comfortable about trying to capture actual conversation and actual human interaction, complete with various terms and activities that some might view as vulgar."
Still, broadcasters say viewers shouldn't expect a flood of profanity or nudity on TV, because that would alienate advertisers and viewers. Industry executives say that they could already run as many obscenities as they wish after 10 p.m., on shows such as "Saturday Night Live," but choose not to. Even if broadcasters lose, they might get a break from the current FCC Chairman Julius Genachowski, a Democrat, who has shown little interest in focusing on indecency fines. His Republican predecessor, Kevin Martin, made policing the airwaves a priority. An FCC spokesman declined to comment.
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