(Corrects stock market symbol (RIC) for News Corp in paragraph
three to NWSA.O. Earlier versions of the story also carried an
* 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 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
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.
"Even when used as an expletive, the F-word's power to
insult and offend derives from its sexual meaning," Scalia
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,"
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
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
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)