Legal News

A Ruling That Might Make Bono Curse Again

By Ashby Jones

Does the Federal Communications Commission violate the First Amendment when it punishes broadcasters for failing to bleep out so-called “fleeting expletives?” In a long awaited ruling, the U.S. Supreme Court . . . didn’t reach the question.

Still, that didn’t stop a 5-4 majority from upholding the Bush administration’s rule penalizing broadcasters for the isolated utterance of a four-letter word before 10 p.m. In an opinion penned by Justice Scalia, the court reversed a lower-court ruling that the Federal Communications Commission didn’t follow proper procedures in adopting its new rule. Click here for the early WSJ story, from Jess Bravin and Amy Schatz; here for the writeup from Scotusblog; here for the opinion itself.

The main opinion stressed that it was dealing only with the question of whether the flat ban on “fleeting expletives” was "arbitrary and capricious" under the law that governs the powers of administrative agencies. The Court said it did not violate that standard, but that is as far as the ruling went.

Justices Stevens, Breyer and Ginsburg all filed dissenting opinions. Justice Souter joined Justice Stevens’s opinion.

The agency announced the decision to ban fleeting expletives in a case involving General Electric Co.’s NBC, which was accused of violating broadcast-indecency rules when it failed to bleep U2 singer Bono (pictured) during the Golden Globes awards show in 2003. The singer used an expletive when his band won an award.

Two years later, the agency began enforcing the new rule when it sided with viewers who complained about several instances of celebrities’ unbleeped swearing during live shows on Fox and other broadcast networks.

Fox Television Stations Inc., which brought the case, didn’t receive a fine from the agency, but it challenged the agency’s decision anyway, arguing that the FCC’s new policy violated the First Amendment. (Fox Television is owned by News Corp., which also publishes The Wall Street Journal.)

The government argued that the case was less about First Amendment concerns than whether the agency had properly followed administrative procedures when changing its policy. The outcome of the case wasn’t totally a surprise, because the justices spent much of their time in oral arguments focusing on potential violations of administrative procedures instead of First Amendment issues.

Justice Scalia did liven things up a bit in his opinion, taking a swipe at "foul-mouthed glitteratae from Hollywood."

Wrote Scalia:

We doubt, to begin with, that small-town broadcastersrun a heightened risk of liability for indecent utterances. In programming that they originate, their down-homelocal guests probably employ vulgarity less than big-cityfolks; and small-town stations generally cannot afford or cannot attract foul-mouthed glitteratae from Hollywood.

Full post as published by Law Blog - WSJ.com on April 28, 2009 (boomark / email).