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High court to review penalties for TV expletives

  • Story Highlights
  • Court agrees to hear case about penalties for slipped vulgarities on live shows
  • FCC cited Nicole Richie, Bono and Cher for expletives during awards shows
  • Federal appeals court had ruled FCC penalties were "arbitrary," "capricious"
  • FCC appealing to restore power to penalize; oral arguments will be in fall
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From Bill Mears
CNN Washington Bureau
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WASHINGTON (CNN) -- The U.S. Supreme Court agreed Monday to jump back into the free speech debate over whether broadcast television networks should be penalized for indecent or vulgar language that slips through inadvertently on a live or unscripted broadcast.

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Cher's use of an expletive during the 2002 Billboard Music Awards is among the cases cited by the FCC.

Politely referred to as "fleeting expletives," the coarse language has been aired in isolated instances on all the major networks over the past six years as the Federal Communications Commission began clamping down with a no-tolerance policy.

The justices will hear oral arguments in the fall.

Fox, NBC, ABC, CBS and other network affiliates are parties in the case. A federal appeals court in New York last June ruled in the networks' favor, calling the FCC's policy "arbitrary and capricious." The FCC then appealed to the Supreme Court.

The commission wants the high court to restore its power to penalize the networks airing such language, even if it is only occurs once and even if it does not describe a specific sex act.

Such language has appeared with greater, albeit varying, frequency on cable television, the Internet and satellite radio, which do not use public airwaves. But the federal government is charged with responding to viewer complaints when "indecent" language reaches broadcast television and radio, which is subject to greater regulation.

The FCC formally reversed its policy in March 2004 to declare even a single use of an expletive could be illegal. In its decision, officials noted, "Given the core meaning of the 'F-Word,' any use of that word or a variation, in any context, inherently has a sexual connotation. The 'F-Word' is one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language. Its use invariably invokes a coarse sexual image."

The changes became known as the "Golden Globes Rule" -- for U2 singer Bono's 2003 acceptance speech at the awards show on NBC in which he uttered the phrase, "Really, really, f---ing brilliant."

The commission also cited celebrities Cher and Nicole Richie's use of the "F-Word" and "s--t," respectively, on the 2002 and 2003 Billboard Music Awards airing on Fox.

ABC's complaint involved "NYPD Blue," while CBS was cited for "The Early Show."

Enforcement of the law as well as fines and sanctions for the incidents have been put on hold while the case faces argument.

But after last year's appellate ruling -- which said the FCC did not adequately explain amendments to and enforcement of its "vague" policy on broadcasts of profanity -- Michael Copps, then the FCC commissioner, warned that "any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake."

The Supreme Court first ventured into the broadcast speech debate in 1978, when it ruled indecent a monologue by comedian George Carlin on society's taboo surrounding "seven dirty words." The bit had received some radio airplay.

The author of that narrow opinion, Justice John Paul Stevens, still sits on the high court. He famously defined "indecent" speech as any depiction or description of "sexual or excretory activities or organs" in a manner that is deemed "patently offensive as measured by contemporary community standards for the broadcast medium."

At the time, the justice, who is now 87, steered clear of a philosophical discourse on the First Amendment, choosing instead to focus on the practical effect of suppressing "dirty" speech: protecting young children, who might be watching or listening.

The television networks say their scripted shows no longer have expletives, even after 10 p.m., when some potentially vulgar words are permitted. Their worry is the unplanned, often spontaneous, use of an indecent word at live events, such as awards shows and sporting events. Company officials say such programs are often on a five-second delay, and censors are on hand to bleep any offensive language. But some indecent words can slip through, they admit, and they want to be protected from heavy government fines.

Broadcasters also argue that they remain uncertain about which words are banned and in what context. They say "s---t" is forbidden under FCC rules, but not "poop" or "crap," even though all those words are crude references to excrement.

The federal appeals court also noted the government does not punish every "indecent" reference on the air, citing "Saving Private Ryan," the R-rated, Academy Award-winning movie filled with vulgar language from soldiers. The 1998 film has been aired repeatedly on the networks, but the FCC said such profanity was not intended to shock or titillate but rather to "convey the horrors of war."

News programs that inadvertently air indecent language are similarly exempt from most FCC sanctions, the judges said.

In a separate incident over nudity, CBS is appealing an indecency fine totaling $550,000 for broadcasting singer Janet Jackson's "wardrobe malfunction" -- when her breast was briefly revealed-- at the 2004 Super Bowl half-time show. Twenty CBS stations were included in the fine. A ruling from a federal appeals court in Philadelphia, Pennsylvania, is expected at any time.

Congress quickly reacted to the visual shocker by increasing indecency fines tenfold, up to $325,000 per violation per network. Each local affiliate that aired such incidents also could be punished by the same amount. E-mail to a friend E-mail to a friend

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