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Attorney argues FCC rules on profanity unfair

By Jeffrey Toobin
CNN Senior Legal Analyst

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NEW YORK (CNN) -- In a Manhattan courtroom where the words of Supreme Court justices are usually debated, the potty-mouthed antics of Nicole Richie and Cher were the subject of an unusual federal appeals court hearing Wednesday.

The Federal Communications Commission found that remarks by the two celebrities at the 2002 and 2003 Billboard Music Awards violated federal decency standards. Fox Television, which broadcast the shows, is appealing the judgment, which did not include fines.

Carter Phillips, a Washington attorney for Fox, repeatedly quoted the disputed language in open court, including Cher's remark that "people have been telling me I'm on the way out every year, right? So f--- 'em," and Richie's statement, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f---ing easy."

Phillips told the three-judge panel that the FCC had approved the use of those precise words in a broadcast of the film "Saving Private Ryan," a distinction that left broadcasters in the unfair position of guessing when the words were appropriate and when they were not.

In an unusual move for a federal court, the judges allowed C-Span cameras to broadcast the hearing, which led Judge Peter W. Hall to ask Eric D. Miller, the lawyer for the government, whether a news broadcast on the case would draw FCC scrutiny.

Miller said no, because a news broadcast would not be intended "to pander or titillate."

A decision is expected by spring.

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