(AFP) – Nov 4, 2008
WASHINGTON (AFP) — No one would say the word in court, but a four-letter obscenity muttered on US television by the likes of Cher and Bono was the focus of attention in the Supreme Court Tuesday as lawyers argued whether it was too crude for broadcast.
At specific issue was whether the Federal Communications Commission, which regulates broadcast television and radio, but not cable television, went too far when it suddenly moved in 2004 to levee fines of hundreds of thousands of dollars for any use on air of the word "fuck," as well as "shit."
Since a 1978 ruling, US law has forbidden the use of those and several other "expletives" on broadcast television especially during the 6 am to 10 pm period when children might be watching.
Still, until 2004 the FCC had mostly overlooked instances when someone blurted out an obscenity during an unscripted live broadcast. Punishment was only for repeated uses of the obscene words in a broadcast.
But when the agency seemed to ignore rock star Bono's televised "really, really fucking brilliant" exultation in accepting his 2003 Golden Globe award, it was hit by a backlash from conservatives.
Bono's expletive came after singer Cher was broadcast by Fox television using the "f-word" for her critics on another awards show, and after TV personality Nicole Richie, on a third live show shown on Fox, said "shit" in a joke about a Prada purse.
After feeling the heat from conservatives, the FCC let known that it would begin hitting violators of its policy with stiff fines, even if the uses of the banned words were "fleeting," or were not related to the respective sex or excrement meanings of the two words, as with Bono.
Fox, backed by other broadcasters, challenged, and a New York appeals court backed the broadcasters, saying the FCC had not offered a "reasoned explanation" for its change of stance, which the court ruled was "arbitrary and capricious."
The FCC took the case to the Supreme Court, where defense attorneys at times tried to broaden the case to invoke the Constitutional rights of free speech.
Lawyers and justices took pains not to utter the offensive words themselves, but some of the focus was how widespread they were used today and how their very frequent use often had little relationship to their base meanings.
Moreover, behind the case was the issue that while the FCC is policing broadcast television for offensive language, its mandate does not cover cable or satellite television, where there are no restrictions in place today on offensive language.
Conservative Justice Antonin Scalia seemed sympathetic to the FCC's view that any use of either word was offensive.
"They said even when it is used just as a swear word or as an expletive, the reason it has its impact is precisely because it refers to these excretory or sexual activities," Scalia said.
And Chief Justice John Roberts found the context crucial, seeming to accept the frequent use of the word "fuck" in situations like the gory Steven Spielberg war movie "Saving Private Ryan" but not on popular television.
"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 are standing up at an awards ceremony," he said.
Nevertheless it appeared impossible to predict how the nine justices would eventually rule -- whether they could, on one hand, just send the case back to the lower court, or whether on the other extreme they would elevate it to a full-fledged review of free speech rights.
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