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Here in Washington, dirty words return to the Supreme Court today. For a second time in three years, the justices are hearing arguments about a regulation adopted during the Bush administration. The Federal Communications Commission rule allows the agency to punish broadcasters with stiff fines, for the fleeting use of vulgar language. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: In 1975, the Supreme Court ruled that broadcasters could be punished for airing sexual and excretory expletives during prime time, when children are more likely to be watching. [POST-BROADCAST CORRECTION: The Supreme Court ruling was in 1978.] But that was when a handful of TV networks were the sole purveyors of TV fare.
Even then, though, the FCC regulated with a relatively light hand. Then in 2003, singer Bono used the F-word at the Golden Globe Awards ceremony in expressing how delighted he was to win. That, apparently, was the straw that broke the Bush administration's back, and the FCC adopted a new, more punitive approach. It started fining broadcasters for even fleeting and isolated use of vulgar language. The test case was a Billboard Awards ceremony, broadcast live by Fox, when Cher accepted her prize this way.
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TOTENBERG: The FCC cited Fox for indecency, and the network went to court - claiming unconstitutional punishment of speech, and a violation of the laws governing how agency rules are made.
When the Supreme Court ruled on the case in 2009, the justices, by a 5-to-4 vote, upheld the penalty, based on administrative law. But the court ducked the censorship issue, specifically reserving it for another day.
That day has now come. The case is back before the court after a federal appeals court in New York said the lines drawn by the FCC cannot be justified in today's multichannel world, and that the rule amounts to discrimination based on the content of speech.
The Obama administration appealed that ruling - leading to today's arguments, which very likely will mirror parts of the arguments in 2008. Last time, for instance, Justice Ginsburg noted that the FCC had not fined the networks for airing "Saving Private Ryan," even though the movie is filled with expletives. But a PBS documentary about jazz was punished because some of the musicians interviewed used expletives.
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JUSTICE RUTH BADER GINSBURG: One of the problems is that seeing it in operation, there seems to be no rhyme or reason for some of the decisions that the commission has made.
TOTENBERG: Chief Justice Roberts observed that under the commission's rule, it could punish the network for airing Cher's comment during the live broadcast, but it would not punish the network for reporting her comment on the morning news. He also questioned the efficacy of the FCC rule in a multimedia era.
But the Bush administration's solicitor general, Greg Garre, replied that broadcasting is subject to a different standard under the court's past precedents. Justice Stevens, who wrote the 1975 precedent, interjected at that point.
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JUSTICE PAUL STEVENS: Wasn't the rationale for the lesser standard largely the scarcity of the frequencies?
GREG GARRE: Broadcast TV is, as Congress designed that to be, the one place where Americans can turn on the TV at 8 o'clock and watch their dinner, and not be expected to be bombarded with indecent language.
TOTENBERG: It would be a remarkable thing, said Garre, to adopt the world that the networks are asking for.
GARRE: Going from the extreme example of Big Bird dropping the F bomb on "Sesame Street," to the example of using that word during "Jeopardy" or opening the episode of "American Idol."
TOTENBERG: Representing the broadcasters, lawyer Carter Phillips got significant blowback from some of the court's conservatives. Chief Justice Roberts strongly suggested the context matters, especially when the viewers are children.
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CHIEF JUSTICE JOHN ROBERTS: I mean, it's one thing to use the word in "Save It" - "Saving Private Ryan," when your arm gets blown off. It's another thing to use it when you are standing up accepting - at an awards ceremony.
CARTER PHILLIPS: You can't seriously believe that the average 9-year-old, first of all - who is probably more horrified by the arm being blown off, to begin with. But putting that aside, it cannot possibly be that the child has more of a reaction to that word in that context than if a young high school football player is running down the field, screaming a particular expletive.
TOTENBERG: The chief justice replied that in the Cher case, the swear word is completely gratuitous. And in "Saving Private Ryan," it is not.
Nina Totenberg, NPR News, Washington.