FCC's Profanity Case Against Fox, Cher, Nicole Richie Heading To Supreme Court

JOHN DUNBAR | March 17, 2008 07:02 PM EST | AP

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WASHINGTON — The Supreme Court will decide whether it is indecent when some foul-mouthed celebrity drops the "F-word" on live television, stepping into its first major broadcast indecency case in 30 years.

The high court said Monday it will hear arguments in a case over whether the government can ban "fleeting expletives," one-time uses of familiar but profane words.

The case grew out of decision by the Federal Communications Commission in 2006 that two broadcasts of the "Billboard Music Awards" show were indecent, though the agency levied no fines. Cher uttered one fleeting expletive beginning with "F" and Nicole Richie uttered a variation of the same word and another one beginning with "S."

Fox Broadcasting Co. and others appealed the decision, saying that the agency had changed its enforcement policy without warning and that the new ban was unconstitutional.

A federal appeals court in New York agreed, 2-1, throwing out the ban and sending the case back to the agency, which appealed to the Supreme Court.

FCC Chairman Kevin Martin told The Associated Press Monday that he was pleased the justices are stepping in. He said the appeals court had "put the commission in an untenable position" by giving it the responsibility to enforce indecency rules but not the tools to take action.

Still, there was widespread surprise that the court took the case, and there was speculation the justices might take a broader look at the issue of indecency in a media environment that has changed dramatically over the past three decades.

Fox Broadcasting Co. said the case gives the company "the opportunity to argue that the FCC's expanded enforcement of the indecency law is unconstitutional in today's diverse media marketplace where parents have access to a variety of tools to monitor their children's television viewing."

The FCC has authority to regulate speech on broadcast radio and television stations, but not the Internet, cable and satellite TV.

The last time the court heard a broadcast indecency case _ FCC v. Pacifica in 1978 _ the Fox television network did not exist, nor did the Internet. Only a fraction of homes received cable television service and there were no direct broadcast satellite companies.

"The Pacifica case was obviously adopted in a very different era and a very different time," said Andrew Schwartzman, president of the Media Access Project, who was one of those who predicted the court would not take up the current case. "Allowing for the fact that I have been completely wrong so far, I think it is highly unlikely that the court will venture in to address how this relates to other media."

Schwartzman's group represents the Center for Creative Voices in Media. He argued that the current policy is "incoherent and overbroad" and has "chilled the creative process for the writers, directors and producers we represent."

Tim Winter, president of the Parents Television Council, an anti-indecency watchdog group, said he was "delighted" by the court's decision, but he also noted there was no guarantee it would uphold the FCC's policy. "Obviously there's a risk," he said.

But any argument that the media environment has changed to such a degree that the broadcast rules are no longer relevant seems unlikely to get far, he said.

"Despite the proliferation of various forms of media over the past 25 years, broadcasting is every bit as pervasive today as it was at the time of the Pacifica decision," he said.

The current enforcement climate regarding expletives is uncertain. The FCC has been unable to act on hundreds of thousands of complaints while the case is in limbo, according to its appeal to the high court. Both the chairman and broadcasters said Monday they were seeking clarity from the court.

The 2nd District Court of Appeals, in rejecting the FCC's enforcement approach, did so on procedural grounds but also said it was "skeptical that the commission can provide a reasoned explanation for its fleeting expletive regime that would pass constitutional muster."

The FCC changed its policy on indecency following a January 2003 broadcast of the Golden Globes awards show by NBC when U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said the "F-word" in any context "inherently has a sexual connotation" and can trigger enforcement.

NBC challenged the decision, but that case has yet to be resolved.

The Fox programs at issue in the case before the high court are a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase "F--- 'em" and a Dec. 10, 2003, Billboards broadcast in which 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."

In a separate, highly publicized case, CBS is challenging a $550,000 fine the FCC imposed for the "wardrobe malfunction" that bared Janet Jackson's breast during a televised 2004 Super Bowl halftime show. The 3rd U.S. Circuit Court of Appeals in Philadelphia is considering whether the incident was indecent or merely a fleeting and accidental glitch that shouldn't be punished.

The Fox case will be argued in the fall. The case is FCC v. Fox Television Stations, 07-582.

____

Associated Press writer Mark Sherman contributed to this report.

(This version CORRECTS SUBS graf 3 to correct number of uttered expletives.)


 
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- dax49 I'm a Fan of dax49 18 fans permalink

why isn't the FCC addressing the lies and prejudices that come out of FOX NEWS

    Favorite    Flag as abusive Posted 12:33 AM on 03/19/2008
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Funny, when I visit Canada I'm amazed that none of their movies are edited when shown on TV. Even programs like Deadwood and South Park. Instead they have a warning before the show begins and after commercial breaks explaining that this program may contain violence, course language and nudity. I guess Canadians are able to find the off and change channel buttons on the TVs because I don't see any raving sex-maniacs running around on the street from viewing these things.

Or maybe is a country of adults who know how to control their own kids and what they can watch.

    Favorite    Flag as abusive Posted 09:45 PM on 03/18/2008
- bushmocker I'm a Fan of bushmocker 7 fans permalink

At least we can still watch someone get shot with a machine gun in slow motion with blood squirting out all the wounds and their bodies flopping around like a rag doll with their head getting cut off before the body hits the ground.Now that's entertainment.

    Favorite    Flag as abusive Posted 08:48 PM on 03/18/2008
- bushmocker I'm a Fan of bushmocker 7 fans permalink

I know we're used to hearing swear words,but when they're heard at prime time or while the family is watching something together it's not always comfortabl­e.Instead of the Supreme court getting involved why not just set up an automatic fine system tied to the hour of day,type of audience,size of audience ,context of the swearing and whether it could have been avoided.It would be a good way to raise money for a charitable cause and the biblethumpers would know the swearing was at least going to help someone in need.

    Favorite    Flag as abusive Posted 08:36 PM on 03/18/2008
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Sean Hannity's and Bildoreally's faces are the ;most obscene things on TV.

    Favorite    Flag as abusive Posted 08:36 PM on 03/18/2008
- azureblue I'm a Fan of azureblue 20 fans permalink

Profanity is the resort of the ignorant mind. The reason there is more profanity is because America grows stupider by the day. Want to get rid of profanity? Then educate and encourage people to think.

    Favorite    Flag as abusive Posted 04:49 PM on 03/18/2008
- misterbone I'm a Fan of misterbone 18 fans permalink

Profanity is a fact of life, not a product of ignorance.

They say ignorance is bliss. It's only when people begin to read and think (and therefore understand the SHIT that they're in and how FUCKED they are) that makes profanity necessary to avoid insanity.

    Favorite    Flag as abusive Posted 07:22 PM on 03/18/2008

The "Supreme" Court has nothing of more importance to consider? Ridiculous.

    Favorite    Flag as abusive Posted 03:21 PM on 03/18/2008
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So long Frst Amendment. It was nice knowing you.

    Favorite    Flag as abusive Posted 01:00 PM on 03/18/2008

That arrogant little punk Kevin Martin is FCC Chairman defines profanity; he inherited the job from another unqualified twit Michael Powell, who was obviously appointed because of his father’s name and used the FCC to score a big corporate job. Both men have and are abusing their authority to push for corporative and big money interest and the public is the big loser as usual. This profanity nonsense is a bone being thrown to family values crowd who can’t take reasonability for raising their own children, while the rest of country is enduring unfettered media consolation and 24 spin. The only honest journalism I’ve seen in years was the media coverage of Katrina. Even Fox so-called journalist lost it seeing what was actually happening, but it wasn’t long until business as usual, blaming everyone in sight.

    Favorite    Flag as abusive Posted 12:56 PM on 03/18/2008
- enveg01 I'm a Fan of enveg01 6 fans permalink

So, let's see... you can show all sorts of graphic violence including people getting shot, cut up, raped, and tortured but the F word goes all the way to the supreme court. Priorities, anyone?

    Favorite    Flag as abusive Posted 12:24 PM on 03/18/2008
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This is all Bushit!!! We are being diverted by sex talk from the real problem in the MSM.

What is critical is the plethora of propaganda that is sold as fair and balanced reporting.

The solution is a New Fairness Doctrine with Keith Olbermann as it's first Fairness Czar.

Forcing Fox to give equal time to Keith to correct any misinformation would end this crap.

    Favorite    Flag as abusive Posted 12:21 PM on 03/18/2008
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What a fucking joke! What a sense of priority! There's no problem with the level of violence on TV but when someone swears it's a big deal, what a fucked sense of morality.

    Favorite    Flag as abusive Posted 11:46 AM on 03/18/2008

With all of the violence and other horrors in movies and television programming, I am astounded that it is words that attract the outrage.

sigh

    Favorite    Flag as abusive Posted 11:45 AM on 03/18/2008

The supreme court has some messed up, backwards thinking logic. To think that this is at all important, as compared to the injustices, graft, corruption, and outright war crimes going on in the government. Their priorities are misplaced.

    Favorite    Flag as abusive Posted 10:34 AM on 03/18/2008
- mojopo I'm a Fan of mojopo 10 fans permalink
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I agree. It boggles the mind that people are being fined excessive amounts for using words anyone can hear on the subway, out in the street and during a coffee break at any office on any given day. Using "fuck" or "shit" isn't taboo like it used to be. Of course, cursing isn't the most polite thing to say to people one isn't completely familiar with, but in a world of complex problems too numerous to list, why are we wasting time and money on dirty words? Such bullshit.

    Favorite    Flag as abusive Posted 11:45 AM on 03/18/2008

I agree with CE that this issue is lower in priority than what is listed in his post. However, the F word has no place on network TV. It is an example of what the Hollywood elite has become, and a bad example of rich and famous morons that exist in the cesspool of Hollywood.

    Favorite    Flag as abusive Posted 11:50 AM on 03/18/2008
- azureblue I'm a Fan of azureblue 20 fans permalink

Surely you jest.. You use "hollywood" to hide your failure to educate your "flock" about using their brains. I am from the south, and long ago there were a lot of people there using "cuss words", long before "hollywood" broadcast them. Go find another whipping boy. better yet, as we say in the South "clean up your own yard first, then you can talk to me about mine."

    Favorite    Flag as abusive Posted 04:46 PM on 03/18/2008
- roald I'm a Fan of roald 16 fans permalink

The Supreme Court can only rule on what is put in front of it. Further, while what they choose to judge appears trivial, it may have important ramifications downstream. I am amazed that they did not uphold the ruling.

    Favorite    Flag as abusive Posted 12:20 PM on 03/18/2008
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