Supreme Court takes on 'fleeting obscenities' on TV

McClatchy NewspapersMarch 17, 2008 

WASHINGTON — The Supreme Court will again be weighing political punishment for dirty words, this time involving undeleted expletives exuberantly uttered by the singers Bono and Cher.

On Monday, in a nod to the Bush administration, the high court agreed to consider whether broadcasters can be disciplined for airing "fleeting" obscenities. The vividly rendered First Amendment conflict becomes the latest case pitting free speech rights against government efforts to protect innocent ears.

"A particularly graphic utterance can serve as a first blow that can cause immediate damage," Solicitor General Paul Clement argued in a legal brief.

The Bush administration supports a Federal Communications Commission rule imposed after Bono and Cher swore briefly in separate live television appearances. Broadcasters say they should not face discipline for obscenities uttered in passing.

In January 2003, during NBC's live broadcast of the Golden Globe Awards, Bono of the Irish rock group U2 accepted the Best Original Song award by declaring, "This is really, really (expletive) brilliant. Really, really great."

FCC regulators initially determined that Bono's use of what officials discreetly termed "the F-word" was not indecent because the singer briefly used it as an adjective in conveying enthusiasm. The politically appointed FCC commissioners thought otherwise, concluding that the "core meaning" of the word associated with sexual intercourse was patently offensive even if used only briefly.

In a related episode, Fox Television aired the 2002 Billboard Music Awards in which Cher received an artist achievement award. The gratified singer and high school dropout from Fresno, Calif, originally known as Cherilyn Sarkisian, took the occasion to denounce her many naysayers.

"I've also had critics for the past 40 years saying that I was on my way out every year," Cher declared. "Right. So (F-word) 'em. I still have a job and they don't."

For several decades, the FCC held that enforcement actions would not be pursued against isolated expletives. The prior policy had been in place roughly since a 1978 Supreme Court case involving comedian George Carlin and his incantation of seven dirty words. This traditional leniency toward fleeting obscenity was reversed by FCC commissioners.

Because the swearing episodes were brief, the FCC did not impose financial penalties in either the Cher or Bono case. The rulings, though, put broadcasters on notice that stricter rules were in force, raising the possibility that future swear words might bring financial pain.

Broadcasters say the swear words aren't always obscene; sometimes, they are a rhetorical flourish rather than an explicit description.

"No viewer of the 2002 Billboard Awards could reasonably believe that Cher was exhorting her audience to have sex with her critics, or that she was otherwise depicting or describing sexual activity," NBC attorney Miguel Estrada argued.

Estrada is a highly regarded Washington-based attorney whose nomination for an appellate court slot had been blocked for political reasons by Senate Democrats. Estrada joined attorneys for Fox Television in challenging the FCC's actions.

To be deemed indecent, speech must describe in "patently offensive terms, as measured by contemporary community standards, sexual or excretory activities or organs."

An appellate court concluded the FCC was "arbitrary and capricious" in reversing the long-standing policy on broadcast obscenities, stressing that regulators lacked "any evidence that a fleeting expletive is harmful (or) serious enough to warrant government regulation."

The Bush administration appealed, raising red flags about the harms that four-letter words might cause listeners.

"The words were uttered without any warning to parents during a live, nationally broadcast awards program watched by millions of children," Clement argued.

McClatchy Newspapers 2008

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