Supreme Court arguments will focus on naughty words

McClatchy NewspapersOctober 31, 2008 

WASHINGTON — Dirty words will captivate the Supreme Court while the rest of the world is watching election returns Tuesday.

In oral arguments that just might turn blue, the court will consider whether fleeting swear words on national television merit punishment. It's a closely watched case, and not just for the R-rated language and a cast of characters that includes Bono, Cher and lesser-tier celebrity Nicole Richie.

One side warns of dangerously loosened morals.

"The welfare of America, its families and its youth will be detrimentally affected by electronic mass communications which contain unrestrained indecency, whether in language or imagery," the National Religious Broadcasters warned in one legal brief.

The other side warns, with equal vehemence, of the creeping hand of censorship.

"Where free speech is at risk, regulatory agencies must act with caution," the American Civil Liberties Union declared in its brief.

Everyone agrees that Federal Communications Commission v. Fox Television Stations stands to be the most entertaining and influential First Amendment case in the Supreme Court's 2008-2009 term.

The unusually high stack of amicus briefs illustrates the case's appeal. Seven briefs support the FCC's effort to punish television networks for swear words, filed on behalf of conservative lawmakers and by groups such as Morality in Media and the Family Research Council.

Six of these seven briefs are G-rated. Conservative lawyers used circumlocutions such as "the F-word" to refer to the language in question.

From the other side, nine friend-of-the-court briefs from the likes of the California and Georgia broadcasters associations, Time Warner and ABC affiliates support Fox.

The case starts with several distinct episodes of indiscreet language.

During a live 2003 broadcast of the Golden Globe Awards, the Irish-born U2 singer Bono exclaimed that his award was "really, really, (blank)ing brilliant." During the 2003 Billboard Music Awards, Richie — apparently ad-libbing — declared, "It's not so (blank)ing simple" to remove "cow (blank) out of a Prada purse."

During the 2002 Billboard awards, Cher celebrated her own award by denouncing her myriad doubters.

"I've also had critics for the last 40 years saying that I was on my way out every year. Right," she said. "So (blank) 'em. I still have a job and they don't."

Complaints about the expletives became an opportunity for the FCC to revise a long-standing interpretation of rules about indecent language.

In the mid-1970s, comedian George Carlin had sworn repeatedly during a 12-minute radio monologue that aired during the afternoon. The FCC deemed the "filthy words" monologue to be indecent, meaning "patently offensive" language that describes or depicts sexual or excretory organs or activities.

The Supreme Court subsequently agreed but noted that "isolated use of a potentially offensive word" would be handled differently from the "verbal shock treatment" of profane repetition.

Applying this reasoning, FCC officials initially considered Bono's language the kind of isolated expletive that's been given a pass for three decades. The full FCC reversed this decision; that reversal is at the heart of the case now.

"The 'F-word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language," the commission reasoned.

The FCC didn't fine Fox or the networks that broadcast the shows with Cher and Richie. However, if the court sides with the agency and rejects broadcasters' arguments that the change in policy about indecent language was arbitrary and capricious, future speakers will be on notice to watch their words.

McClatchy Newspapers 2008

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