US supreme court may rule against broadcast of expletives

US: THE US supreme court this week may reopen for the first time in more than 30 years the debate over what qualifies as an "indecent" broadcast.

The US media environment has changed dramatically since the court last ruled on the issue in 1978: viewers and listeners today are exposed to the more freewheeling cable TV, internet and "shock jocks" on satellite radio.

The issue before the court now is delicately described as the problem of "fleeting expletives" in over-the-air broadcasts, which are still regulated. TV viewers who watch the entertainment industry's award shows may be familiar with the phenomenon.

"This is really, really f***ing brilliant," Bono exclaimed live on NBC when accepting a Golden Globe Award for the best original song in 2003.

On receiving a Billboard Music Award for career achievement, Cher said on Fox TV the honour proved her critics wrong. "So f*** 'em. I still have a job and they don't."

After complaints from angry viewers, the Federal Communications Commission (FCC) moved to crack down on broadcasters who air "isolated or fleeting expletives" during daytime and early evening hours.

Last year Fox and the other networks sued to block the new policy, and an appeals court in New York put it on hold. Now, the FCC is asking the supreme court in FCC v Fox TV to clear the way so the new crackdown can be enforced.

The appellate judges in New York who blocked the new policy said it was arbitrary and vague. It does not, for example, say all expletives will trigger fines from the FCC regardless of the circumstances. News programme and films such as Saving Private Ryan were given exemptions. Including profanity from soldiers on the D-Day beaches was not intended to shock or titillate, the FCC said, but instead helped "convey the horrors of war".

If the justices do chose to take on the case they will be obliged to ponder the many meanings of what the lawyers call the "F-word". Congress has left it to the FCC to decide what that means.

After the 1978 case the FCC described "indecency" as words or pictures that focus on "sexual or excretory organs" and which "dwell on or repeat at length" the descriptions. That rule seemed to leave a loophole for the occasional vulgar word that slipped into a broadcast. But the FCC changed course after it was flooded with complaints from grassroot groups after the vulgarities on the Hollywood awards shows.

In March 2004, a month after a public outcry over the brief exposure of Janet Jackson's breast during the Super Bowl's half-time show, the FCC commissioners adopted a near zero-tolerance policy for fleeting expletives.

Their new rule said "any use of that word or a variation, in any context, inherently has a sexual connotation".

But broadcasters said they have no desire to air expletives, noting that they do not allow them even after 10pm when they are permitted under FCC rules. They're simply trying to make sure that when an unscripted expletive is used - most often by a celebrity who is not a network employee - it does not result in a large fine.

Broadcasters have instituted five-second delays on entertainment award shows and some other live programming, with employees poised to bleep out offensive language. But an occasional blurted expletive slips through.

The stakes have increased dramatically for broadcasters found guilty of airing an indecency. Congress voted in 2006 to boost the maximum fine for each violation tenfold, to $325,000, in the aftermath of the Janet Jackson incident.

Broadcasters also say the rules on what is indecent remain confusing. Variations of the S-word, for example, are considered indecent because they are a "vulgar description of excrement". But the FCC has determined that "crap" and "poop" are not indecent.

When Bono drew complaints, the FCC's staff initially concluded he had not violated the indecency standard because he used the F-word as an adjective, not to describe sexual "organs or activities". But the FCC commissioners disagreed and said there is no exemption for vulgar words used as adjectives or as metaphors.

The FCC does not regulate indecency on the internet or cable and satellite TV because they do not use the public airwaves.

© 2008 Los Angeles Times

This article appears in the print edition of the Irish Times