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High Court Grapples With Vulgar TV Language

MELISSA BLOCK, host:

Dirty words were front and center today at the usually staid Supreme Court. The justices were hearing arguments about a new FCC regulation. It punishes broadcasters with heavy fines for the fleeting use of vulgar language. NPR's legal affairs correspondent Nina Totenberg has our story, without any of the offending words.

NINA TOTENBERG: Thirty years ago, following a Supreme Court ruling, the FCC adopted a light touch and aimed penalties only at repeated bad language meant to shock, not at isolated or fleeting use of expletives. That changed in 2004 when the FCC began punishing broadcasters for the isolated use of bad words. Among the first to be cited was FOX for its live broadcast of the Billboard Awards where singer Cher used the F word.

(Soundbite of Cher's speech at the Billboard Awards)

CHER (Singer): I've also had critics for the last 40 years saying that I was on my way out every year. Right, so - bleep - 'em.

TOTENBERG: FOX challenged the FCC's new policy in court and won. The Bush administration appealed to the Supreme Court, which heard arguments today. Solicitor General Greg Garr told the justices the FCC is fully justified in punishing broadcasters for curse words because the commission is charged with preventing the use of language that describes sexual and excretory activities on the regulated airwaves.

Justice Ginsburg: There seems to be no rhyme or reason for some of the commission's decisions. As an example, she noted that the commission allowed the broadcast of "Saving Private Ryan," which is filled with expletives, but it punished a small TV station for a documentary on jazz history which had interviews containing some of the same words.

Chief Justice Roberts noted that the FCC has allowed these words on the early morning news, so he asked, if he they had a news report about Cher winning the Billboard Award, could they use her actual language? Answer: yes. The difference is that more children are watching the actual awards in prime time, and everyone acknowledges that the F word is one of the most graphic, explicit, and vulgar words for sexual activity.

Justice Stevens: Isn't the word often used with no sexual connotation? Answer: It can be, but it inevitably conjures up a sexual connotation. Justice Stevens: When the court ruled on this 30 years ago, wasn't the rationale for allowing stricter regulation the fact that there was a scarcity of channels, while now we have cable and the Internet?

Answer: Regulated broadcast TV is the one place today where Americans can turn on the TV at eight o'clock and not be bombarded with indecent language. It would be a remarkable thing to allow the networks to use even isolated expletives.

What if, for example, Big Bird dropped the F-bomb on Sesame Street? Justice Bryer: TV covers lots of live events. You deal with a cross-section of humanity. My experience is some parts of that cross-section swear. What are the broadcasters to do? Answer: They can institute a tape delay system.

Justice Scalia: They had a five-second delay at the Billboard Awards, didn't they? Answer: They had only one person working the bleeping machine. Justice Stevens: Maybe I shouldn't ask this, but isn't it ever appropriate for the commission to take into consideration whether the remark is really hilarious? Justice Scalia: What? Bawdy jokes are OK as long as they're really good?

Next up was lawyer Carter Phillips, representing FOX Broadcasting. The FCC's new rule, he argued, is quintessential censorship, in which five unelected bureaucrats decide whether in context any use of a single expletive should be fined. The FCC is charged, he noted, with preventing descriptions of sexual or excretory activity, not punishing curse words.

Chief Justice Roberts, angrily: Why do you think the F word has such shocking value? Because of its association with sexual activity. Answer: There's no evidence of that. People use euphemisms for sex all the time, and nobody blinks.

Returning to the censorship question, lawyer Philips said, if you're dealing a local station broadcasting a local football game and some student uses the F word... Chief Justice Robertson interrupted: That's where context comes in. It's one thing to use the word in "Saving Private Ryan" when your arm gets blown off. It's another thing to do it when you're standing up at an awards ceremony.

Answer: You can't seriously believe that the average nine-year old, who's probably more horrified at the arm being blown off, has more of a reaction to that word in the context of an awards ceremony.

Chief Justice Roberts: In one context, it's completely gratuitous, and the other it's not. Justice Stevens: Do you think society is more or less tolerant of this language today? Answer: More tolerant. Justice Scalia smirked. Do you think your clients have anything to do with that? Answer: Very little. Just go to a baseball game, Justice Scalia. You hear these words everywhere.

Nina Totenberg, NPR News Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.