SAN DIEGO. – Today, the U.S. Supreme Court has heard oral arguments regarding the “Seven Dirty Words” precedent, FCC v. Pacifica Foundation, which allows the Federal Communications Commission to punish broadcasters with large fines for airing obscenities.
The 1978 precedent notwithstanding, prior to 2003 the FCC had largely given broadcasters a free pass for one-time uses of live unscripted profanities. For example, Fox was not fined when singer Cher dropped the F-bomb in her lifetime achievement award acceptance speech in 2002. The FCC did not fine Fox for a similar incident with a reality-show personality Nicole Richie.
Bono, however, was the straw that broke the FCC’s back in 2003, when he explained on air how “really, really f—ing brilliant” it was for him to win that year’s Golden Globe. The broadcaster was sanctioned, and in the same year, ABC and its affiliates were fined $1.4 million for showing bare buttocks of actress Charlotte Ross in an episode of “NYPD Blue.” ABC tried defending itself on the ground that there was no frontal nudity and bare bottom is not a “sexual organ,” therefore, the ambiguous FCC policy should not cover Ms. Ross’s buttocks.
In a 2007 ruling that Bono would probably call “f—ing brilliant,” too, the Second U.S. Circuit Court of Appeals in New York finally agreed that the current FCC policy is unconstitutionally vague and sent the FCC back to the drawing board. Today, the Supreme Court again attempted to balance the FCC’s right to regulate air against broadcasters’ rights to free speech and due process. The broadcasters argued that the FCC rules are burdensome and unpredictable. For example,
the FCC punishes particular vulgar language in some shows but not in the movie “Saving Private Ryan.” Allowing the FCC to use its own artistic judgment instead of clear legal standards that apply to everybody can be viewed as a form of censorship that chills protected expression. The pro-regulation side pointed out that the rules only apply between the hours of 6am and 10pm, when children are more likely to be watching, and the networks are free to be as indecent as they want outside of those hours. This, of course, is not good enough for broadcasters, because it includes the prime time hours.
Justice Sonia Sotomayor is not taking a part in the proceedings because she served on the Second Circuit Court of Appeals when that court considered some of the issues. The Supreme Court decision in the present case, FCC v. Fox Television Stations, 10-1293, is expected this summer.