Fleeting expletives case hits Supreme Court

November 10, 2008

The broadcast networks and the FCC squared off before the U.S. Supreme Court last week over the use of profanity on broadcast television. The so-called “fleeting expletives” case is the high court’s first major broadcast indecency case in 30 years.

After the one-hour hearing, the justices sent mixed signals and didn’t indicate how the court would rule. It could avoid deciding whether the FCC policy violates the Constitution and instead determine that the FCC did not adequately explain why it changed its mind in 2004 when it instituted the ban.

Chief Justice John Roberts, who has young children, and Justice Antonin Scalia, who has more than 20 grandchildren, each said they see no problem banning the use of profane words on television. However, Justice John Paul Stevens said he believes Americans are more tolerant of vulgarities than they were when the court ruled 30 years ago.

It was hard to tell where the court is heading because three justices — Samuel Alito, Anthony Kennedy and Clarence Thomas — said little or nothing during the hearing.

Traditionally, the FCC has not enforced prohibitions against indecency except under extreme circumstances. In 2004, however, the FCC changed the rules after Cher and Nicole Richie used familiar but profane words during awards programs in 2002 and 2003. The move began an FCC crusade on the issue.

A federal appeals court in New York threw out the ban, saying the FCC didn’t provide enough explanation. The government appealed to the Supreme Court.

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