In 1975, the Supreme Court said broadcast companies could be fined for airing expletives and sexual content during prime time (8 p.m. to 11 p.m. Eastern Time) when children are more likely to be watching television. But it’s not 1975 anymore, and when the Bush administration noticed many broadcasters pushing the envelope with what they aired during that crucial evening time slot (thank Bono and his Golden Globe F-bomb for that), it stepped in—passing a regulation that allowed the Federal Communications Commission (FCC) to hand down even stiffer fines for use of vulgar language.
For the second time in three years, the Supreme Court is taking the issue up again. Today it will hear a case the FCC brought against Fox after the 2002 Billboard Music Awards, when singer Cher accepted her award on air saying, “I’ve also had critics for the last 40 years saying that I was on my way out every year. So f- – - ‘em.”
The commission fined Fox, claiming indecency, and the broadcaster fought the charge in court, saying the punishment was an unconstitutional violation of speech. In 2009, the high court ruled 5 to 4 to uphold the penalty but didn’t address the censorship issue. Now it plans to tackle censorship.
But according to previous discussions among the justices over the issue, context matters. Previously, Justice Ruth Bader Ginsburg noted that the FCC did not fine the networks for airing expletives in “Saving Private Ryan,” but it did fine PBS for airing expletives in a documentary about jazz.
“One of the problems,” said Ginsburg, “is that, seeing [the rule] in operation, there seems to be no rhyme or reason for some of the decisions that the commission has made.”
Justice John Roberts, however, pointed out that using foul language at an awards ceremony is completely gratuitous. However, in the case of “Saving Private Ryan,” it isn’t.
Many media law experts hope the high court will decide that the FCC’s indecency policy is unconstitutionally vague. Learn more about this case, which the Supreme Court is expected to rule on by summer, on NPR.