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Conservative groups lauded the U.S. Supreme Court for backing the new policy of the Federal Communications Commission to punish broadcasters for “unscripted” profanity slips, or what some refer to as “fleeting expletives.”
"Today's Supreme Court decision in Fox v. FCC is a huge victory for American families,” cheered Penny Young Nance, former policy advisor to the FCC on indecency issues and current board member of Concerned Women for America.
“American families understand that the public airwaves, like public parks, are owned by all of us. The networks do not have the right to pollute the airwaves with the 'F-word' at will," she added.
On Tuesday, the Supreme Court reversed the ruling of a federal appeals court in New York that said the FCC “failed to articulate a reasoned basis” for the change in policy.
The new policy, voted on by the FCC in 2006, states that “unscripted” profanity slips count as indecency and was established after the “F-word” and the “S-word” were used during Fox’s 2002 and 2003 Billboard Music Awards shows.
While broadcasters argued that such regulations hamper their First Amendment rights, the FCC contended that it has the authority to ensure a certain level of decency is maintained in broadcast standards. That includes enforcing federal restrictions on the broadcast of "any obscene, indecent, or profane language," even speech that is "unscripted."
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"Today's decision does not say that the FCC can or should punish the utterance of every expletive in broadcasting,” explained Robert Peters, president of Morality in Media, in a statement Tuesday.
But he said it does uphold FCC authority to punish a broadcaster in appropriate cases.
"Historically, the FCC has applied a 'nuisance rationale' in determining whether content is 'indecent;' and as the Supreme Court observed in a 1978 case, the nuisance concept 'requires consideration of a host of variables,' including time of day, nature of the audience, program content, etc.,” Peters stated.
"It doesn't take much imagination to think what some broadcasters would do if they had an absolute 'right' to curse at least once in every program.”
While the Supreme Court determined that the FCC’s new enforcement policy is neither “arbitrary” nor “capricious,” as a court of appeals earlier found it to be, it refused to pass judgment on whether the FCC’s "fleeting expletives" policy is in line with First Amendment guarantees of free speech, saying a federal appeals court should weigh the constitutionality of the policy.
“This Court ... is one of final review, ‘not of first view,’” the high court explained in its majority opinion.
“[W]hether it is unconstitutional, will be determined soon enough, perhaps in this very case,” it added.
The case is FCC v. Fox Television Stations.
