Entertainment > Broadcasters Win FCC Profanity Dispute

enefit after Court Ruling Makes Government's Expletives Policy Hard to Enforce

Cher accepts a lifetime achievement award Monday, Dec. 9, 2002, on Fox TV. Her use of the f-word that night was at the heart of a FCC profanity ruling announced this week. (Joe Cavaretta/AP Photo)

A court ruling on a new federal policy against the accidental use of profanities on TV and radio may complicate government efforts to impose indecency fines.

"Practically, this makes it difficult to go forward on a lot of the cases that are in front of us," Federal Communications Commission Chairman Kevin Martin told The Associated Press after the 2nd U.S. Circuit Court of Appeals ruled against the FCC on Monday in a case involving two Fox Television shows.

The appeals court's 2-1 decision returned the case to the FCC, saying the agency could try to explain how its policy was not "arbitrary and capricious." The court said it doubted the FCC could.

The FCC found its ban was violated by a Dec. 9, 2002, broadcast of the Billboard Music Awards in which singer Cher used the phrase "F--- 'em" and a Dec. 10, 2003, Billboard awards show in which reality show star Nicole Richie said, "Have you ever tried to get cow s--- out of a Prada purse? It's not so f------ simple."

Broadcasters are fighting the FCC conclusion that the broadcasts were indecent, even though no fines were issued. The FCC said the "F-word" in any context "inherently has a sexual connotation" and can be subject to enforcement action.

In a majority opinion written by Judge Rosemary Pooler, the appeals court Monday questioned whether the FCC's indecency test could survive First Amendment scrutiny.

"We are sympathetic to the networks' contention that the FCC's indecency test is undefined, indiscernible, inconsistent and consequently unconstitutionally vague," she wrote.

Martin said the FCC had not decided whether to appeal.

Fox Broadcasting praised the ruling, saying "government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment." It said viewers can decide appropriate viewing content for themselves, using parental control technologies.

The new policy was put in place after a January 2003 NBC broadcast of the Golden Globes awards show, in which U2 lead singer Bono uttered the phrase "f------ brilliant." The FCC said the "F-word" in any context "inherently has a sexual connotation" and can lead to enforcement.

FCC Commissioner Michael J. Copps said the decision was disappointing to him and millions of parents but "doesn't change the FCC's legal obligation to enforce the indecency statute."

"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake," Copps said. "The FCC has a duty to find a way to breathe life into the laws that protect our kids."

The 2nd Circuit said the current ban originated at a time when profanities had become so diluted that even President Bush was heard one day telling British Prime Minister Tony Blair that the United Nations needed to "get Syria to get Hezbollah to stop doing this s---."

The court said some of the FCC's explanations for its new policy, reversing a more lenient policy in place for nearly three decades, were "divorced from reality."

In a statement, Martin said: "It is the New York court, not the commission, that is divorced from reality in concluding that the word 'f---' does not invoke a sexual connotation."

Associated Press writer John Dunbar in Washington also contributed to this report.

2007-06-06