WASHINGTON – The Supreme Court has upheld the Federal Communication Commission's decision to prohibit so-called "fleeting expletives" from the broadcast airwaves.
Today's 5-4 ruling authored by Justice Antonin Scalia says the FCC policy cracking down on indecent language was neither arbitrary nor capricious and called its action "entirely reasonable."
The ruling affirms the Commission's decision, made during the Bush Administration, to prohibit foul language that was fleeting in nature. Longstanding FCC policy had banned the use of dirty words used in repetition or with obvious deliberate intent.
The case revolves around the utterance of "f***" and "s***" by Bono, Cher and Nicole Ritchie during the live broadcast of award shows earlier this decade. The FCC enforcing its new policy against "fleeting expletives" sanctioned Fox Broadcast for allowing those words to air unfiltered into American homes.
The FCC says the foul language which aired during prime time generated a record number of complaints from viewers--many of whom were watching with children.
Fox was joined by other broadcasters who argued the FCC's rule change was improper and arbitrary. They also argued the rule violated their First Amendment rights. It was an issue not reached by today's opinion but is one that is likely to be litigated in the lower courts which could lead to its return to the Supreme Court.
Justice Ruth Bader Ginsburg focued her dissent on this constitutional question. "There is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today's decision does nothing to diminish that shadow."
Today's decision also means that it is likely the Court will not review the FCC's fine of CBS for airing Janet Jackson's so-called "wardrobe malfunction" during the 2004 Super Bowl.
The ruling expands upon the Court's 1978 ruling in a case that determined a broadcast of comedian George Carlin's "seven dirty words" monologue was unconstitutional. That decision was based on the intentional and repetitive use of Carlin's supposedly indecent language. The foul language spoken here was certainly not repetitive and was arguably not intentional but rather spontaneous. Nonetheless, the fact that those words went out over live television means the broadcasters can be held liable.
"Programming replete with one-word indecent expletives will tend to produce children who use (at least) one-word indecent expletives," Scalia wrote.
Justice Ruth Bader Ginsburg focused her dissent on the constitutional argument not answered by today's ruling. She said "there is no way to hide the long shadow the First Amendment casts over what the Commission has done. Today's decision does nothing to diminish that shadow."
Interestingly, the concurring opinions of Justices Clarence Thomas and to a lesser extent Anthony Kennedy suggest that even though the broadcasters lost their battle today, an ultimate victory may be within reach.
Thomas sharply criticized the 1978 Pacifica decision and an earlier Court ruling in favor of the fairness doctrine. He says his concurrence with Justice Scalia only extends to the finite technical issues related to the FCC's ability to change its policies. Thomas says he remains "open to reconsideration" of those decisions which he says with "the passage of time has only increased doubt regarding their continued viability."
Kennedy was more opaque about his views on the First Amendment issue. He said "we must reserve judgment" on the issue.
Note: FOX News Channel and FOXNews.com are owned and operated by News Corporation, as is FOX Broadcasting, the main respondent in this case.