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SUPREME COURT SENDS MIXED MESSAGE ON WHETHER TV SHOWS CAN INCLUDE “F” WORDS AND PARTIAL NUDITY

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UPDATE: To read the Supreme Court decision in Federal Communications Commission v. Fox Television Stations, Inc in full, please click here

ORIGINAL POST: As a dad of four kids, it’s getting more and more difficult to let my kids watch sporting events or music shows on broadcast television without fear that they – and my wife and me — will be assaulted by people using vulgar words or actually exposing themselves. We all remember with horror Janet Jackson exposing herself during a half-time Super Bowl show. Various music awards shows and other broadcast TV programs have featured famous performers dropping “F” bombs and other obscenities. This is all part of the moral and spiritual breakdown in the U.S. that I write about in Implosion: Can America Recover From Its Economic & Spiritual Challenges In Time? 

In that context, the U.S. Supreme Court today issued an important ruling in Federal Communications Commission v. Fox Television Stations, Inc. While the decision was unanimous, it sent a morally mixed message. On the one hand, the Court ruled that TV broadcasters involved in the suit don’t have to pay the government enormous fines for allowing “F” words and partial nudity on past programs. That’s a mistake in my view. It could send the message to other TV broadcast networks that allowing such indecent moments won’t really be penalized, and could open the floodgates to more indecency on the airwaves. However, the Court didn’t actually rule on whether the federal government is constitutionally permitted to impose decency standards on the public airwaves. Incredibly, both Fox and ABC wanted the Court to set broadcasters free from all limits and allow them to air whatever obscenities, nudity and other indecencies it wanted. Fortunately, the Court did not go that far — at least not yet. Thank God, but the battle to protect our kids will continue.

The Drudge Report headline reads: “F Word: Fox Wins Over FCC — Court throws out policy regulating curse words on broadcast TV.”

The Associated Press story described a somewhat more nuanced decision than that. “The Supreme Court unanimously threw out fines and sanctions Thursday against broadcasters who violated the Federal Communications Commission policy regulating curse words and nudity on broadcast television. But the justices declined to issue a broad ruling on the constitutionality of the FCC indecency policy. Instead, the court concluded only that broadcasters could not have known in advance that obscenities uttered during awards show programs and a brief display of nudity on an episode of ABC’s NYPD Blue could give rise to sanctions. ABC and 45 affiliates were hit with proposed fines totaling nearly $1.24 million….It was the second time the court has confronted, but not ruled conclusively on, the FCC’s policy on isolated expletives. Justice Anthony Kennedy said in his opinion for the court that ‘it is unnecessary for the court to address the constitutionality of the current policy.’ The case arose from a change in the FCC’s long-standing policy on curse words. For many years, the agency did not take action against broadcasters for one-time uses of curse words. But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the air waves free of indecency when children are likely to be watching television. But Kennedy said the commission did not adequately explain that under the new policy ‘a fleeting expletive or a brief shot of nudity could be actionably indecent.’ The stepped-up indecency enforcement, including issuing record fines for violations, also was spurred in part by widespread public outrage following Janet Jackson’s breast-baring performance during the 2004 Super Bowl halftime show. That incident, and the FCC’s proposed fine of $550,000, are not part of the current case. The government has an appeal pending of a lower court ruling that threw out the fine in that case. The material at issue in Thursday’s decision includes the isolated use of expletives as well as fines against broadcasters who showed a woman’s nude buttocks on a 2003 episode of the show ‘NYPD Blue.’ In December 2002, singer Cher used the phrase ‘F— `em’ during the Billboard Music Awards show on the Fox television network. A month later, U2 lead singer Bono uttered the phrase ‘f—— brilliant’ during NBC’s broadcast of the Golden Globes awards show. During the December 2003 Billboard awards show on Fox, 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.’ But the challenge went beyond just the penalties for the use of fleeting expletives. The broadcasters wanted the court to free them from all regulation of content around the clock. The court’s 1978 Pacifica decision upheld the FCC’s reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.”

I appreciated what Family Research Council president Tony Perkins said in response: “Today, the U.S. Supreme Court gave the FCC the green light to continue imposing indecency fines on the networks for fleeting expletives and brief nudity. When a similar case goes before the Supreme Court again for fines imposed for any future violations, we expect the Court to once again decide that fleeting expletives and brief nudity are not protected under the First Amendment. The public airways are just that — public. The networks using them have a moral duty to the American public to responsibly provide content that is acceptable for all viewers. This is not a heavy burden for those whose television and radio licenses provide them with substantial profits.”

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