FCC v. Fox Television Stations (07-582)

The United States Supreme Court recently heard arguments on a case dealing with indecent speech on television.

At issue in the case

* “fleeting expletives” on broadcast TV

* The government aiming to clamp down on indecent language on the public airwaves

* But broadcast networks say government inconsistently regulates indecent speech

* Case concerns dirty words from celebrities such as Bono, Cher, Nicole Richie

According to CNN’s recording of events in this case:

A federal appeals court in New York last year ruled in their favor, calling the FCC’s policy “arbitrary and capricious.”

The commission then appealed to the Supreme Court, seeking restoration of its power to penalize the networks airing “indecent” speech, even if it is broadcast only once, and even if it does not describe a specific sex act.

Such language is seen with greater, albeit varying, frequency on cable television, the Internet and satellite radio, which do not use public airwaves.

But the federal government is charged with responding to viewer complaints when “indecent” language reaches television and radio, which is subject to greater regulation.

The crux of the issue concerns a number of fleeting expletives by celebrities and indecency on television shows.

The commission specifically cited celebrities Cher and Richie’s potty-mouth language during the 2002 and 2003 Billboard Music Awards, which aired on Fox. Richie, in an apparently scripted moment said, “Have you ever tried to get cow s–t out of a Prada purse? It’s not so f—ing simple.”

The complaint against ABC involved “NYPD Blue,” a now-canceled scripted police drama, and the one against CBS involved “The Early Show,” a news and interview program.

The Appeals Court ruling stated that the FCC did not adequately explain amendments to and enforcement of its “vague” policy on broadcasts of profanity. Now, the US Supreme Court will weigh in on the “isolated” use of such words — politely referred to as “fleeting expletives” — and the power of government to clamp down on what it sees as pervasive indecent language on the public airwaves.

Read the CNN article here.


7 responses to “FCC v. Fox Television Stations (07-582)

  • Dawn

    Policing the networks for indecent language has always been a challenge. Determining what is indecent in this day and age of “anything goes on television” is difficult. During the Superbowl several years ago, the network was fined for the Janet Jackson escapade of nudity, so it can be done. I am not sure if the “fine system” is the penalty that will eliminate the indecent language and nudity on television. Public airwaves may no longer be able to air live programming.

  • Cynthia Braun

    This case is perplexing. The FCC’s policy was ruled “arbitrary and capricious” by the federal appeals court in NY. As a result, the FCC wants to restore its ability to fine the networks. I’m curious why they lost their intial authority to fine…? That question nothwithstanding, it’s apparent that because the FCC’s wording is “arbitrary and capricious”, the FCC must specifically define for the court the words and phrases it considers indecent language. The Supreme Court seems willing to “weigh in” on the use of “isolated” words and phrases. Does this mean that the FCC must present its case(s) one word or one phrase at a time to the Supreme Court? Or…does the FCC need to sue network by network…one word at a time? No matter the approach, the process seems quite arduous, time-consuming, and costly. Nonetheless, the cause is important for a variety of reasons. The FCC’s future approach must be specific, targeted and well-defined. The most practical way to achieve their goal seems to be with a well-defined list of terms, accompanied by a well-defined list of airwaves/frequencies/ networds, with the ability to modify these lists through legislation.

  • Summary: FCC v. Fox Television Stations | Law Offices of Gordon P. Firemark - Entertainment Lawyers

    […] J. Contigula’s blog has a good summary of last week’s Supreme Court argument in  FCC v. Fox Television Stations.  The case is being closely followed by entertainment and communications lawyers, and  deals with […]

  • A. Mercurio

    Although not a huge fan of censorship, I believe there is an appropriate time and place for most everything. The FCC’s job is to monitor and regulate the networks, and accordingly, levy fines when appropriate. It seems the main issue here is not whether or not the “fleeting expletives” are acceptable during prime-time when children are likely to be watching or listening. The issue at hand deals more with inconsistencies in the FCC’s regulation. These guidelines must be clear, and fines doled out consistently, taking into consideration all of the varying elements.

    At first blush, Justice John Paul Steven’s definition of indecent speech as any description of “sexual or excretory activities or organs” in a way that is considered “patently offensive as measured by contemporary community standards for the broadcast medium” seems reasonable. However, it seems, we’ve found gray areas here as well. As mentioned in the CNN article, synonyms for the words that are absolutely taboo are almost uniformly accepted. The big task at hand will be to clarify these regulations and responsibly balance the First Amendment right to free speech (including artistic freedom)and protect the viewers (especially children).

  • Toni Bellucci

    I agree that public television should have a standard to adhere to, however, in a chance encounter of a “fleeting expletive” in an unscripted event that is aired live, it becomes an issue of individual character not one of law. While I’m sure most would agree that profanity is best to be left at a poker table, practice of expressing oneself by using profanity has become more common than rare. It is a form of expression and not all profane words have a clear definition. Albeit this form of expression is a social taboo it has become a social norm.

    Censorship of public airways has evolved to the cultural changes in the last 60 years. While the use of profanity has become more common in social circles, it is still viewed as bad taste, lack of education and impolite. I would rather my family be subject to a barrage of indecent language on television, and use it as a tool to learn from, then loose my family’s right to a freedom of expression as protected under the first amendment rights. Leave it to the family to teach morals and values.

  • Sherry Conca

    It seems that the FCC is punishing the television stations for an individual’s error and lack of vocabulary other than foul language. It seems the only way to prevent situations like this is to eliminate live performanes. Each of the situations that was noted in the article are examples of the what the mass population unfortunately has come to accept as common language. While offensive to many it is heard everyday on cable, the street, schools, offices, and homes across America. We live in a society that sets the entertainment world up on a pedestal and allows them to bend the rules of decency in the name of “entertainment”. Until such time as society takes action and walks out or actually “boo” as these individual’s use foul language instead of laughing, the FCC can fine the networks all it wants but it will not change. And who’s responsibility is it to make that change? Remember entertainers crave acceptance. Just don’t ask those individuals to participate or be guest on the talk shows. And when they ask why – tell them their language and actions are offensive and unacceptable and the network is not going to pay any fines on your behalf. If you want to go on stage, you pay for your ignorance and rudeness. When it starts hitting their pocketbooks, they’ll take notice.

  • Debbie Rickard

    Here we go again…Freedom of Speech, with lots of money attached. It almost seems like this right always seems to have some monetary value attached. Although, it is true the the news stations have a responsibility to what is presented to the general public. With all these companies makeing more money off of parents to protect their children from these “fleeting expletives” Would it not be obvious to share this responsibility with the perpeturator(s)? It is clear that once a “big name” says something creative and gets away with it then the rest come rushing through. What ever happend to being responsible for your own actions? In addition….how about some class and consideration of your audience.

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