High court sides with FCC in indecency case

WASHINGTON — In what conservatives called a victory for parents, the U.S. Supreme Court Tuesday narrowly upheld the ability of the Federal Communications Commission to prohibit certain indecent language on broadcast television, even if it is a one-time instance.

The 5-4 majority opinion by the court's most conservative members reversed a lower court ruling by the Second Circuit Court of Appeals that had gone against the FCC. The Supreme Court, though, based its ruling solely on federal statutes and did not tackle the constitutionality of the FCC's policy, and the celebration by conservatives was somewhat tempered because Clarence Thomas — one of the court's more conservative justices — indicated in a concurring opinion that he might rule against the FCC in a future case that involved First Amendment issues. The Second Court now will consider those questions.

But it was still a big victory for social conservatives. The lawsuit involved two instances of indecent language on Fox Television: 1) a 2002 Billboard Music Awards program in which the singer Cher said the "f-word" and 2) a 2003 Billboard Music Awards program in which Nicole Richie used the "s-word" and f-word. After receiving complaints, the FCC found Fox in violation of indecency, although it imposed no fines because the policy prohibiting "fleeting" words was a new one. Previously, an indecent word had to be used repeatedly for a broadcaster to be found in violation. The FCC, in announcing its new policy, said that if it allowed the use of "fleeting" expletives, widespread usage of those words on TV would follow.

Fox sued, arguing that the FCC had acted outside its authority and had violated what is known as the Administrative Procedure Act. The Second Circuit agreed, ruling that the FCC policy was "arbitrary and capricious." But the Supreme Court came to a very different conclusion, saying the FCC had acted properly. The high court pointed out that children were watching the programs, a point which the FCC had cited in its initial finding. An estimated 2.5 million minors watched each show.

"Here it suffices to know that children mimic the behavior they observe — or at least the behavior that is presented to them as normal and appropriate," Justice Antonin Scalia wrote for the majority. "Programming replete with one-word indecent expletives will tend to produce children who use one-word indecent expletives. Congress has made the determination that indecent material is harmful to children, and has left enforcement of the ban to the Commission."

Scalia said technological advances — presumably so-called seven-second delays — give broadcasters the ability to bleep out language on live TV. Scalia also criticized the Second Circuit for doubting that an FCC policy allowing fleeting expletives would lead to a growth in their usage.

"To predict that complete immunity for fleeting expletives, ardently desired by broadcasters, will lead to a substantial increase in fleeting expletives seems to us an exercise in logic rather than clairvoyance," he wrote.

The high court's ruling paves the way for the FCC to impose hefty fines on broadcasters, although such fines could be blocked by more court action. President Bush signed into law in 2006 a measure overwhelmingly approved by Congress that increased the maximum fine for each decency violation by 10 times to $325,000.

Scalia was joined in his ruling by Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and Thomas. Dissenting were the court's liberal bloc: Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

"Today's ruling by the Supreme Court is an incredible victory for families," Tim Winter, president of the Parents Television Council, said in a statement. "The Court has affirmed that the broadcast airwaves do indeed belong to the public, and not to the broadcasters who are granted a license to use the public airwaves for free."

Thomas wrote a concurring opinion, saying he agreed that the FCC had acted within its statutory guidelines. But Thomas said he questioned the "viability" of two Supreme Court cases cited by the FCC as constitutionally supporting its rules: a 1969 case, Red Lion Broadcasting Co. v. FCC, and a 1978 case, FCC v. Pacifica Foundation. In Red Lion, the Supreme Court upheld the so-called Fairness Doctrine, and in FCC v. Pacifica, the high court ruled that the FCC had the authority to regulate indecent language on the airwaves. That latter case involved comedian George Carlin's "seven dirty words" routine. Justice Stephens — who dissented Tuesday — actually wrote the majority opinion in the FCC v. Pacifica case.

Social conservatives no doubt will applaud Thomas' questioning of the Red Lion case but will express concern over his doubts about FCC v. Pacifica, which has formed a constitutional basis for FCC policy.

"Red Lion and Pacifica were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity," Thomas wrote.

"'The text of the First Amendment makes no distinctions among print, broadcast, and cable media, but we have done so' in these cases," he wrote, using wording from a previous Supreme Court opinion.

In a concurring opinion, Justice Kennedy also indicated he might have some First Amendment concerns, although he wasn't as detailed in his explanation as was Thomas.

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