Broadcast TV and 'fleeting obscenities'

The Rocky

Saturday, March 22, 2008

It's not often that arguments before the U.S. Supreme Court could be considered inappropriate for children.

But by agreeing to hear a case challenging the Federal Communications Commission's regulations on broadcast decency, the justices will have to confront some salty dialogue. After all, the opinion under review from the 2nd U.S. Circuit Court of Appeals contains language we wouldn't print in this newspaper.

We hope the justices affirm the 2nd Circuit, which ruled that the FCC could not punish broadcast stations that allowed "fleeting expletives" over live TV.

We're not saying blue comedy routines belong in prime time. We just see no way to consistently enforce such rules and allow extensive coverage of live events, where language of passion and emotion sometimes cannot (or should not) be contained.

The consolidated cases before the court were brought by the four major broadcast networks and several affiliates. Fox was cited (but not fined) by the FCC after celebrities Cher and Nicole Richie uttered profanities during broadcasts of live awards shows in 2002 and 2003.

Fox argued that the FCC's regulations barring indecency are arbitrary. A 1978 Supreme Court ruling had given the agency the authority to police over-the-air broadcasts for "patently offensive" language of a sexual nature aired between 6 a.m. and 10 p.m., when children are likely to listen. And yet later court rulings have cautioned the FCC against punishing broadcasters for airing "isolated" utterances.

The FCC had not cited any TV network that aired "fleeting expletives" for nearly 30 years, and indeed had a policy that officially looked the other way should such language reach households during news coverage or live sporting and entertainment events.

In 2004, however, reacting to complaints, the FCC reversed its policy. The new rule stated that some language is so offensive it should not be aired even if the broadcaster didn't anticipate it. Citations against Fox and others followed.

Barring fleeting expletives in over-the-air broadcasts is unworkable in many live media settings. The 2nd Circuit agreed. And the court chided the FCC for reversing policy without an adequate explanation. Why should it be unlawful for stray profanities to air in 2002 when the agency hadn't policed them for so long?

The court did not say that networks have full First Amendment rights and offensive content on the airwaves could never be sanctioned. It did suggest, however, that arbitrary restrictions on offensive language are likely to be struck down.

Good. We're sympathetic to concerns that programs rife with foul language contribute to the coarsening of the culture. Licensees that are granted exclusive access to airwaves have a duty to monitor what they broadcast. Obscenities will become commonplace, migrating from live sporting events to scripted series during dinner hour, without some expectation that programming be appropriate for the time of day and that profanity be frowned upon when children are likely to be watching.

Broadcasters - as opposed to cable programmers, who aren't using public frequencies - should have some legal accountability. But the rules banning offensive speech need to be enforced consistently and pass a common-sense test. That's why we hope the justices will uphold the 2nd Circuit and go no further.