Supreme Court May Re-examine What Is "Indecent"
March 3, 2008

This week, after more than 30 years, the Supreme Court may reopen the debate over what constitutes an "indecent" broadcast. The issue before the court is the usually accidental, so-called "fleeting expletive" that sneaks into an over-the-air broadcast, such as Bono's "This is really, really f---ing brilliant" comment at the 2003 Golden Globes, which was broadcast on NBC.

After receiving complaints from viewers, the Federal Communications Commission (FCC) moved to crack down on broadcasters who air "isolated or fleeting expletives" during daytime and early evening hours. Last year, Fox and other television networks sued to block the new policy, and an appeals court in New York put it on hold.
Now, the FCC is asking the Supreme court to clear the way for the crackdown to be enforced. The justices may act on the agency's appeal as soon as today, and if they vote to hear FCC vs. Fox TV, arguments will be heard in the fall, reports the Los Angeles Times.

The appellate judges in New York felt that the FCC's new policy was arbitrary and vague, as it does not specify that all expletives will trigger fines regardless of the circumstances. At the same time, the appellate judges hinted that a true ban on all broadcast expletives would violate the 1st Amendment's free-speech guarantee. 
At the same time, broadcasters have said they have no desire to air expletives, but they're just trying to make sure that when an unscripted expletive is used - most often by a celebrity who is not a network employee - it does not result in a large fine. To help monitor the situation, broadcasters have instituted five-second delays on awards shows and some other live programming, but an occasional expletive can still slip through.

"It's like the Maytag repairman," said Rick Cotton, general counsel for NBC Universal, according to the LA Times. "You're expecting that after sitting in front of a console for literally thousands of hours that at a particular moment, on a completely unexpected basis, a person will hear it and will react in time."

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Mark Adams
San Francisco

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