Can Broadcasters Use Dirty Words? Court says, “#$%& If We Know”

Thursday was First Amendment day at the Supreme Court. But the Court ducked the chance to decide what is literally its most visible case of the term—the “dirty words on broadcast TV” case. Federal Communications Commission v. Fox Television Stations, was on its second trip to the show. Seven justices delivered an opinion that sheds no light at all on the interesting issue—whether the government may ban “fleeting expletives” on broadcast TV. 

Briefly, the case concerned a new FCC rule subjecting broadcasters to fines if their shows included even brief, or “fleeting” uses of dirty words or nudity. In 1978, the Court held that the FCC could discipline broadcasters for transmitting sustained “indecent” speech—in this case, George Carlin’s magnificently profane 12-minute “Filthy Words” monologue—during daylight and early evening hours, when children might hear it. Since that decision, decency groups have badgered the FCC to tighten the rules on dirty words. Not until the George W. Bush administration, however, did they find allies on the Commission. In 2004, the Commission issued an order stating that even one dirty word or image, however fleeting, might in context be punishable as “indecent.” Using that standard, it then levied fines against a number of broadcasters for tacky TV shows—e.g., Cher saying “fuck ‘em” to her critics on a music-awards show, or a brief flash of a nude female buttocks on NYPD Blue—that had been shown in 2003. 

The broadcasters first argued that the FCC’s new standard was arbitrary; in 2009, the Court held that it was not. On remand, the Second Circuit found them vague, and the Commission brought the case to the Court again. Thursday, the Court ducked the issue—because the “indecent” broadcasts took place before the 2004 order, it said, fining the broadcasters violated the Fifth Amendment’s guarantee of “due process of law,” which requires advance notice of a legal standard.

The Court added that “it is unnecessary ... to address the constitutionality of the current indecency policy” or the larger question of whether, with the explosion of cable and web-based TV delivery, the Pacifica rule makes any sense at all. That issue will surely be back, sooner rather than later; the current rules leave TV broadcasters in the dark about their rights in news broadcasting and popular entertainment. Six justices joined the opinion; Justice Ginsburg, concurring only in the judgment, briefly wrote that the Court should have taken Pacifica down. Justice Sonia Sotomayor, formerly on the Second Circuit, recused herself from the case.

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