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Supreme Court Finds in Favor of FCC in Profanity Case


On April 28th, 2009, the Supreme Court handed down its decision in the case FCC v. Fox. Today the highest court in the land ruled 5-4 in favor of upholding the FCC’s finding that so-called “fleeting expletives” can be found to be legally indecent.


This was a decisive ruling on the issue of profanity on the public airwaves. The matters in this case have been at legal issue for almost a decade; and the origins of the regulation of inappropriate language on the airwaves go back to the earliest days of broadcasting.


In the Communications Act of 1934 – the law which codified practices for the then-new business of radio broadcasting -- Congress legislated that the broadcast airwaves belonged to the American people as a whole. Under the law, private broadcasters would be permitted to use this publicly-owned resource for profit, provided they did so “in the public interest.” The Federal Communications Commission was established to enforce the laws regulating the use of the airwaves. For the next four decades, the FCC very rarely intervened in matters of program content; but this was overwhelmingly due to the fact that broadcasters and the entertainment industry acted responsibly and did not air programs that were offensive or indecent.  


But after the social upheavals of the 1960s, some broadcasters chose to challenge the law and its concept of indecency. In 1973, a New York radio station owned by the Pacifica Foundation aired comedian George Carlin’s infamous “Seven Dirty Words” monologue, in which he listed the seven words which were not allowed on the public airwaves. Listeners complained, and the FCC reprimanded the station (though it did not impose a fine or curtail the station’s operation in any way). Pacifica challenged the FCC’s action in the courts, and the case wound its way through the legal system. Finally, in the 1978 case FCC v. Pacifica, the U.S. Supreme Court ruled that the FCC’s actions had been appropriate, but the ruling also went further – the Supreme Court ruled that the government has a legitimate interest in protecting children from indecent media content. Under Pacifica, the current “safe harbor” system was put in place: programming containing potentially indecent material can only be broadcast between the hours of 10 p.m. and 6 a.m. In the Pacifica ruling, the Court stated that, unlike books or newspapers, the broadcast airwaves are “uniquely influential and pervasive” in the lives of Americans, and that therefore government regulation of their content does not violate the First Amendment.


Unfortunately, in the decades since the Pacifica decision the broadcast network’s standards have lowered, and the proscription of indecent content has been steadily eroded by the entertainment industry’s desire to “push the envelope.” Although more and more program content was ignoring broadcast decency laws, the FCC did nothing to halt the slide – until the Parents Television Council stepped in! By urging the public to file formal complaints with the FCC, the PTC forced the regulatory body to take its responsibilities seriously and begin enforcing the laws against broadcast indecency. As a result of the PTC’s actions, the FCC started imposing fines on broadcasters who aired profanity or showed indecent content; but in many cases, broadcasters prevaricated and the FCC lagged on enforcement. Because during this period the FCC did not always fine every instance of questionable language, the networks pretended that they didn’t know which words were indecent. The networks claim that they asked the government to “clarify” the law by giving them examples of indecent language.


Yet seven years ago, the networks showed that their pretended ignorance of what kind of language constitutes indecency was a sham. An incident occurred that was so blatant it cried out for government action.  


During the 2002 and 2003 Billboard Music Awards broadcasts on the Fox network, Cher and Nicole Ritchie used the “f-word” and “s-word” openly, without any bleeping or alteration. Both words fall under the legal definition of indecency. The FCC – as is their legal obligation – fined Fox for airing these words in prime time, thereby giving the networks the clear example of indecency for which they had allegedly asked. But despite the blatant illegality of their actions, Fox did not then simply admit wrongdoing and pay a fine. Instead, Fox said that those instances were merely "fleeting expletives" (a particularly ridiculous claim, since by its very nature all speech is “fleeting”). Fox sued the FCC, arguing that they have the "right" under the First Amendment to air any kind of language they want, any time they want, without any penalty. Fox was joined in its lawsuit by other major broadcasters: ABC, CBS, NBC and Hearst-Argyle (an association of local broadcast stations).


Once again, the case slowly wound its way through the courts, with the networks working the system until they found judges who would rule in their favor. When the Manhattan-based U.S. Second Circuit Court of Appeals heard the case, the PTC filed a friend-of-the-court brief supporting the FCC, joined by other pro-family groups like Focus on the Family, Concerned Women for America, Citizens for Community Values, the American Family Association of Michigan, and the Illinois Family Institute.   


Unfortunately, in June 2007 the Second Court found in favor of the networks and imposed their will on the nation, running contrary to nearly 80 years of settled jurisprudence about the publicly-owned airwaves and the overwhelming sense of the nation. Nearly a century of community decency standards were thrown out by two judges in New York.


The Parents Television Council urged the U.S. Department of Justice and the FCC to appeal the case to the Supreme Court, arguing that unless the Court upholds previously established and longstanding law, the Commission's power to protect the public interest would be severely undermined. In March of 2008 the U.S. Supreme Court agreed to hear the case during its 2008-2009 term. Once again the PTC filed a friend-of-the-court brief, this time not only asking the Supreme Court to find in favor of the specific fines against Fox, but to reaffirm the constitutionality of the FCC’s ability to enforce broadcast decency.


In its brief, the PTC made the points that broadcast television is still a “uniquely pervasive” influence in America; it is still uniquely accessible to children; and it still confronts the viewer in the privacy of the home, all points that the Supreme Court made in the Pacifica ruling. Furthermore, the PTC stated that, rather than arguing over precisely which words are indecent, broadcasters could and should adopt a zero-tolerance policy towards indecency.  By implementing a 10-second delay, especially during live broadcasts, the networks would greatly curb indecent programming on television, and would help to protect America’s children and families.


But shortly thereafter, the broadcast networks showed their true colors, and demonstrated that they have absolutely no regard for the concerns of the millions of Americans whose airwaves they are permitted to use free of charge. On August 1st, 2008, ABC, CBS and NBC closed ranks with Fox and filed briefs defending Fox’s claim that airing the “f-word” and “s-word” was not indecent. These briefs even condemned the Pacifica ruling -- and claimed that broadcasters should not be bound by any type of indecency law! In spite of testimony by network executives before Congress promising to abide by the indecency laws; in spite of pledges of zero-tolerance policies following Janet Jackson’s striptease during the 2004 Super Bowl halftime show; in spite of signing consent decrees promising to adhere to the law; in spite of their legal briefs claiming that they would follow the indecency law if only they had better clarity from the FCC – in spite of all these promises to abide by the law, the networks now said that they should be able to air any profanity, any amount of nudity, as much explicit sex, and all the graphic and gratuitous violence they want, without any restrictions whatsoever.


In making this astonishing statement, the broadcast networks claimed that, because of cable and satellite TV, broadcast TV was no longer "uniquely pervasive" – even though more than 98% of American homes own a TV that picks up broadcasts, more than receive cable or use the Internet. But even as the broadcast networks were telling the Supreme Court that the public airwaves are no longer “uniquely pervasive,” they were making millions of dollars in profit every month – and were doing so by using a public utility free of charge!


This desire on the part of those who use the publicly-owned airwaves was shown to be a matter of concern for all parents when, several months after the networks’ announcement, the PTC released its most recent study of profanity on television. This study found that profanity on prime-time broadcast television not only increased tremendously since 1998, but that harsher profanity also became more common in the same period. More than a quarter of the expletives children hear unbleeped or partially-bleeped on broadcast television today are some form of the "f-word," the "s-word," or the "b-word." After an expletive is first used on television, usage of the word becomes commonplace in fairly short order, with the result that the broadcast networks then feel the need to up the ante with even more profanity. In total, nearly 11,000 expletives were aired during prime time on broadcast TV in 2007 – nearly twice as many as in 1998. As just one example, the “f-word” aired only once on prime-time broadcast TV in all of 1998 – yet it appeared 1,147 times on prime-time broadcast TV in 2007.


By 2008, six of George Carlin’s “Seven Dirty Words” had aired unedited on broadcast TV during prime-time viewing hours. While the networks like to claim that the FCC’s enforcement of broadcast decency laws has a “chilling effect” on free speech, it is clear that in fact the opposite is true: broadcast standards have become so permissive that the phrase “broadcast standards” is now an oxymoron.


Even though there are many more forms of entertainment today than there once were -- the Internet, mobile technology, iPods and the like – the Supreme Court’s wisdom and logic in its Pacifica decision still stands. Broadcasting is every bit as “uniquely pervasive” today as was in 1978. The American people have a right to expect that the publicly-owned airwaves be kept free of indecent material, as the law requires. A large majority (79%) of the American people -- all Americans, not just those with children – believe that there is too much coarse language on TV. And an overwhelming number of adults believe that there should be tougher enforcement of decency rules on broadcast television


During the recent Supreme Court case, the broadcast networks stated their belief that they are above the law, and that they need not take into account the wishes of the millions of Americans whose public property they are exploiting for their own greedy ends. If broadcasters want to use the public airwaves to deliver their product to every home in the country for free – and make billions of dollars in profit every year by doing so -- then they must abide by the indecency laws as prescribed by Congress, affirmed by the Supreme Court and enforced by the FCC. 


Today’s ruling affirmed the right of the American people to have a say in how the broadcast airwaves are used.  Now it is up to the FCC to do its job and enforce the law.


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