In a split decision announced Tuesday, the Supreme Court said that the FCC has the power to regulate the use of even a single "indecent" word used in passing on television or radio.
Specifically at issue was whether the FCC's 2004 reversal of its own past precedents was "arbitrary and capricious." Before 2004, the commission had generally said that it wouldn't penalize broadcasters for the use of words like "fuck" or "shit" if they were used as expletives instead of literally, and would typically only frown upon the repeated use of the words. But under the Bush administration, things changed. Here, from the opinion, are the facts of the cases at issue:
This case concerns utterances in two live broadcasts aired by Fox Television Stations, Inc., and its affiliates prior to the Commission’s Golden Globes Order. The first occurred during the 2002 Billboard Music Awards, when the singer Cher exclaimed, “I’ve also had critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” The second involved a segment of the 2003 Billboard Music Awards, during the presentation of an award by Nicole Richie and Paris Hilton, principals in a Fox television series called“The Simple Life.” Ms. Hilton began their interchange by reminding Ms. Richie to “watch the bad language,” but Ms. Richie proceeded to ask the audience, “Why do they even call it ‘The Simple Life?’ Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” Following each of these broadcasts, the Commission received numerous complaints from parentswhose children were exposed to the language.
The opinion was written by Justice Antonin Scalia, and joined by Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas, who also wrote a concurring opinion. Anthony Kennedy joined in part and dissented in part.
As SCOTUSblog notes, in his opinion, Scalia refrained from actually using the offending words. But he did refer to "foul-mouthed glitteratae from Hollywood," as in, "We doubt, to begin with, that small-town broadcasters run a heightened risk of liability for indecent utterances. In programming that they originate, their down-home local guests probably employ vulgarity less than big-city folks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood."
Notably, the court didn't address the First Amendment issues at hand, and only considered whether the FCC actually had the power it claimed. The case now goes back to the appellate level, which can consider the speech issue, and then SCOTUS may yet weigh in again.