October 3, 2011 / 5:45 PM / in 8 years

On Supreme Court's Slate: Cher's Foul Language, Charlotte Ross' Butt


The Supreme Court is back, and it’s got Cher swearing.

Among the cases on the docket as the court kicks off its 2011-2012 slate of hearings Monday is “fleeting expletives,” exposed derrieres and the Federal Communications Commission’s constitutional right to fine the broadcasters that allow them.

Though no dates have been announced, at issue is the FCC’s right to enforce indecency rules as highlighted in two separate matters.

The first case involves 2002 and 2003 award shows on Fox in which Bono, Cher and Nicole Richie used profane language.

The second case has to do with actress Charlotte Ross exposing her buttocks, however briefly, in a 2003 episode of “NYPD Blue.”  The FCC fined 52 ABC affiliates a total of $1.4 million for broadcasting that rear view.

Historically, the FCC had given a pass to occasional "fleeting expletives," and though the commission never formally fined Fox for the blue language in the awards shows, it announced in 2004 that it would enforce the decency laws with much more zeal.

Fox called foul and challenged the regulatory change of heart in court. It argued that the commission did not articulate why it altered its enforcement protocol, and also that the prohibitive nature of the rules was outdated and counter to the First Amendment.

The U.S. Court of Appeals for the Second Circuit in New York took up both the Fox and ABC matters separately, in 2008 and 2011 respectively, and in both cases decided in favor of the broadcasters.

In its January 2011 decision overturning the FCC action against ABC, the appeals court said the indecency rules were “unconstitutionally vague” and have a “chilling” effect on the right of free speech.

The Fox matter previously had a round in the Supreme Court in 2009.

It resulted in a 5-4 decision in favor of the FCC. Led by Justice Antonin Scalia, the court found that the commission was within its rights when it enforced its regulations.

However, the court did not rule on the constitutionality question.

This summer the Obama administration petitioned the court to render a decision on the constitutional issues.

Family-friendly organizations such as Parents Television Council, Morality in Media, Inc., National Religious Broadcasters and Focus on the Family and Family Research Council have all come out in support of the FCC.

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