Potty Mouths OK for TV but Not for the Supreme Court

It's really ironic.  Just days after a new study showed an explosive rise in the use of foul language on broadcast television, the Supreme Court heard a case about whether “fleeting” profanity on broadcast TV should be regulated by the government.  But in the course of arguing the case the lawyers involved couldn't actually bring themselves to say to the justices the vulgar words in question.

In reporting on the case, both The Washington Post and The New York Times seemed utterly amused at the lengths to which the lawyers went to dance around the actual words by using euphemisms like “F-bomb” and “S-bomb,” while also noting that liberal justice John Paul Stevens speculated whether the word “dung” would be considered a dirty word.

At issue is a case brought by Fox Television, which was sanctioned by the Federal Communications Commission (FCC) when singer Bono used the f-word in a live 2003 broadcast.  In other live broadcasts Cher also used the same word while celebrity Nicole Richie used the s-word.  FCC regulations stipulate that between the hours of 6 a.m. and 10 p.m., when children were most likely to be in the viewing audience, content that is “patently offensive” and expresses excretory or sexual activity is not permissible.

Fox is suing the FCC because it argues that the agency had not previously regulated fleeting uses of profanity and therefore acted arbitrarily and capriciously when it ruled that the one-time utterances were a violation of broadcast decency law. The government argued that the Court should uphold broadcast decency standards and the FCC's ability to enforce them or “the networks (would be) free to use expletives….24 hours a day.”

The Court heard the case less than a week after a new study noted that profanity, including harsh profanity, on broadcast television is up dramatically in the last ten years.

According to the Parents Television Council, a television watch dog group, nearly 11,000 expletives were aired during prime time programming on broadcast TV in 2007.  That number is nearly double the amount of profanity aired in 1998.  The PTC recorded every instance of unbleeped or partially-bleeped foul language that aired during prime time entertainment programming (excluding sports) on eight broadcast networks (ABC, CBS, Fox, NBC, CW, MyNetworkTV, UPN and WB) between 1998 and 2007. 

The PTC found “harsh profanity,” including the very words the Fox lawyers couldn't say to the Supreme Court Justices, were becoming “more commonplace at earlier times of the day.”  The study showed that the f-word was found in 52 percent of the programming, or 96 shows, that aired during the so-called Family Hour of 8:00 E.T.  CBS and Fox accounted for almost 60 percent of all shows airing the f-word.

PTC found that 55 percent of Family Hour programs aired the s-word word in 2007.  The s-word was not used once in the same hour of programming in 1998 according to the study.

While the Washington Post ran an editorial on the day of the hearing in favor of Fox Television's position, the paper's news account of the hearing described accurately the cultural conflict at the heart of the case.

The case capped a battle over what can be said on radio and television, part of a broader culture clash between those who see increased profanity on the airwaves as harming children and debasing the nation's values and others who believe the government's crackdown threatens free speech and artistic expression.

The government has imposed decency standards on broadcasters since the 1920s, and currently the FCC prohibits the broadcast of sexual or excretory content on radio and television between 6 a.m. and 10 p.m., when children are most likely to be in the audience.

After making this correct assessment Post reporter Jerry Markon then applied the “conservative” label to justices who challenged the Fox television position and “decried” a “coarsening of broadcast television.”  Markon did not use the “liberal” label when discussing the comments of Justices Stephens or Breyer.

New York Times reporter Adam Liptak steered away from ideologically labeling the justices and noted another important dimension to the case.

It was not clear Tuesday whether the justices would limit themselves to assessing the reasonableness of the commission's actions or reach the larger question of whether government regulation of indecent speech on the airwaves can be justified under the First Amendment in the Internet era.

At the argument Tuesday … the justices differed on the significance of the changed media landscape since the Pacifica decision. (Solicitor General) Mr. Garre said the advent of media not subject to indecency regulation was a reason to continue to regulate broadcasters. “Americans who want to get indecent programming can go to cable TV,” he said. “They can go to the Internet.”

The issue of broadcast decency has not been taken up since the Court ruled on George Carlin's “seven dirty words” monologue the 1978 case FCC vs. Pacifica.  The Court's ruling in that case made it possible for the FCC to regulate foul language as indecent content.

Kristen Fyfe is senior writer at the Culture and Media Institute, a division of the Media Research Center.