CORRECTED-UPDATE 3-U.S. top court upholds TV profanity crackdown

Tue Apr 28, 2009 3:16pm EDT

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(Corrects stock market symbol (RIC) for News Corp in paragraph three to NWSA.O. Earlier versions of the story also carried an incorrect RIC.)

* US top court upholds crackdown on TV profanity

* Justice cites "F-word's" power to insult and offend

* Fox optimistic it will prevail on free-speech issue (Adds Fox reaction, paragraphs 9-11)

By James Vicini

WASHINGTON, April 28 (Reuters) - The Supreme Court upheld a U.S. government crackdown on profanity on television, a policy that subjects broadcasters to fines for airing a single expletive blurted out on a live show.

In its first ruling on broadcast indecency standards in more than 30 years, the high court handed a victory on Tuesday to the Federal Communications Commission, which adopted the crackdown against the one-time use of profanity on live television when children are likely to be watching.

The case stemmed from an FCC decision in 2006 that found News Corp's (NWSA.O) Fox television network violated decency rules when singer Cher blurted out an expletive during the 2002 Billboard Music Awards broadcast and actress Nicole Richie used two expletives during the 2003 awards.

No fines were imposed, but Fox challenged the decision. A U.S. appeals court in New York struck down the new policy as "arbitrary and capricious" and sent the case back to the FCC for a more reasoned explanation of its policy.

The FCC, under the administration of President George W. Bush, had embarked on a crackdown of indecent content on broadcast TV and radio after pop star Janet Jackson briefly exposed her bare breast during the 2004 broadcast of the Super Bowl halftime show.

Before 2004, the FCC did not usually enforce prohibitions against indecency unless there were repeated occurrences.

By a 5-4 vote and splitting along conservative-liberal lines, the justices upheld the FCC's new policy under the Administrative Procedure Act.

The high court did not rule on Fox's constitutional challenge to the policy on free-speech grounds. The Supreme Court sent that issue back to the appeals court.

"While we would have preferred a victory on Administrative Procedure Act grounds, more important to Fox is the fundamental constitutional issues at the heart of this case," Fox said in a statement.

The network said it was optimistic that it would ultimately prevail on the free-speech issue. If Fox wins before the appeals court, it would be up to the FCC and the Obama administration to decide whether to take the matter back to the Supreme Court, legal sources said.

Justice Antonin Scalia, in summarizing the court's majority ruling from the bench, upheld the new policy as rational.

'F-WORD'S POWER'

"Even when used as an expletive, the F-word's power to insult and offend derives from its sexual meaning," Scalia said.

Government lawyers in the case have said the policy covered so-called "fleeting expletives," such as the "F-word" and the "S-word" that denote "sexual or excretory activities," respectively.

Critics said the FCC has been inconsistent in enforcing its new policy. It allowed the television broadcast of the movie "Saving Private Ryan" even though it contained the same expletives.

The policy applies only to broadcasts. Neither cable nor satellite channels are subject to FCC content regulation.

Scalia said the fact that technological advances have made it easier for broadcasters to bleep out offending words further supported the FCC's stepped-up enforcement policy.

Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer dissented.

"The FCC's shifting and impermissibly vague indecency policy only imperils these broadcasters and muddles the regulatory landscape," Stevens wrote, adding that the networks face the threat of crippling financial penalties.

Stevens said it is ironic that the FCC patrols the airwaves for words that have a tenuous link with sex and excrement while commercials during prime-time hours ask viewers if they "are battling erectile dysfunction or are having trouble going to the bathroom."

Critics of the policy, like Andrew Jay Schwartzman of the Media Access Project, said the impact would be especially severe on smaller independent and public broadcasters.

"Writers, artists and directors on the front lines of the First Amendment face continuing pressure to err on the side of the blandness," he said. (additional reporting by Jill Serjeant in Los Angeles) (Editing by Dave Zimmerman, Lisa Von Ahn, Leslie Gevirtz)

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