FCC "Fleeting Expletives" Policy Stands

The Supreme Court on Tuesday said the government could threaten broadcasters with fines over the use of even a single curse word on live television, yet stopped short of ruling whether the policy violates the U.S. Constitution.

The court, in a 5-4 decision, refused to pass judgment on whether the Federal Communications Commission's "fleeting expletives" policy is in line with the Constitution's First Amendment guarantees of free speech. The justices said a federal appeals court should weigh the constitutionality of that policy.

The decision did, however, throw out a ruling by the 2nd U.S. Circuit Court of Appeals in New York. That court had found in favor of a Fox Television-led challenge to the FCC policy and had returned the case to the agency for a "reasoned analysis" of its tougher line on indecency.

The commission appealed to the Supreme Court instead.

Justice Antonin Scalia, writing for the court, said the FCC policy, adopted in 2004, is "neither arbitrary nor capricious."

The FCC changed its long-standing policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television.

The FCC's rule change was precipitated by complaints from parents after two live awards broadcasts in which Cher and Nicole Ritchie uttered (either by accident or on purpose) what the opinion describes as the "F-word" and the "S-word."

Under the new FCC rule, some words are so offensive that they always evoke sexual or excretory images. So-called "fleeting expletives" were not treated as indecent before then.

In its last major broadcast indecency case, the court ruled 30 years ago that the FCC could keep curse words off the airwaves between 6 a.m. and 10 p.m.

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