NEW YORK (AdAge.com) -- In a decision that -- for now, at least -- makes even the most random utterances of expletives punishable by law, the U.S. Supreme Court upheld an earlier ruling stating that so-called fleeting expletives are not suitable for broadcast on public airwaves.
Even so, a cautious optimism has emerged among TV networks that things will eventually work in their favor. A lower court has already ruled that sanctions against the random expression of profanity on live broadcasts are "arbitrary" and difficult to enforce, and the Supreme Court has remanded the case back to that same legal body.
In a 5-4 decision, the Supreme Court essentially reversed an earlier ruling in a case known as Federal Communications Commission v. Fox Television Stations, in which the U.S. Court of Appeals for the 2nd Circuit said the idea of sanctioning random utterances of profanity is "capricious," and such expressions are not as dangerous or harmful to viewers as regular use of profanity that has sexual or excretory connotations. The case stems from a 2002 broadcast of the Billboard Music Awards on News Corp.'s Fox during which Cher and Nicole Richie uttered expletives, as well as a 2003 NBC Golden Globes broadcast on NBC during which U2 frontman Bono declared, "This is really, really fucking brilliant."
The Supreme Court decision, penned by Justice Antonin Scalia, seemed to focus less on the problems with profanity and more on whether the FCC has the legal ground to pursue sanctions against harsh language. In his opinion, Justice Scalia noted that the FCC has broadened its view on use of profanity, at times allowing one-time use of particular words, though in recent years the commission has taken a dimmer view.
For advertisers, the decision is likely to keep the airwaves a little cleaner, but for broadcast networks it could hamper efforts to present programming that is in keeping with modern times. While consumers can regularly hear profanity during an airing of "Rescue Me" on the FX cable network or "Deadwood" on HBO, or even during a broadcast of the Howard Stern radio program on XM Sirius satellite radio, those services are paid for by subscribers. The broadcast networks, which have a license to use public airwaves, must serve a broader populace and are held to stricter standards, even though their vast viewership is likely to hear profanity in multiple venues.
Some parties applauded the decision. "Broadcasters must abide by the terms of their licenses. They must not air indecent material before 10 p.m. -- the hours when children are most likely to be in the viewing audience," said Tim Winter, president of the Parents Television Council, an advocacy group that rails against profanity and sexuality on TV at times when children might see it. "We must put the well-being of children first and allow certain hours of the broadcast day to be a safe haven for families." Mr. Winter added, "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."
But broadcasters, who routinely draw in huge audiences by showing live events such as awards ceremonies and sporting contests, are likely to continue to fight this battle. "Fox is looking forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts," the network said in a statement.
"Very important First Amendment issues are at stake here for both broadcasters and for the American people," a CBS statement on the ruling said. "And since neither the appellate court nor the Supreme Court has yet dealt with the constitutional questions raised, we are confident that when the constitutional issue is addressed, the rights that protect broadcasters and all citizens will be honored by the court."
Possible support for media
One network executive said the Supreme Court's decision was a narrow one, based mostly on procedural grounds, which means there may still be support for the media outlets on First Amendment grounds. Another element playing in the networks' favor is the fact that the FCC's efforts to crack down on language took place under a previous administration. The Obama administration may not be as likely to press on the profanity issue so long as networks give parents tools to ensure children aren't exposed to indecent material.
The issue is of concern to broadcast networks because live events and sports -- where "fleeting expletives" are most likely to be heard -- bring in some of the outlets' highest ratings and broadest audiences. One catalyst for the FCC's recent efforts in this area was CBS's broadcast of the 2004 Super Bowl, in which part of Janet Jackson's breast was exposed on national TV during the halftime show.
During the time the FCC effort has worked its way though the court system, broadcast networks have found ways to work around the issue. Many networks have placed stricter audio delays on live events and bleeped out profanity that runs during reality fare such as "Cops." NBC has begun running bleeped-out profanity in "Southland," a scripted drama that appears Thursdays at 10 p.m. In recent interviews, NBC executives have said such use of profanity can work, so long as audiences are given a sense of what to expect and not surprised by content.