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F-bombs And Bare Bottoms At The Supreme Court

The Supreme Court will hear today whether the FCC can punish broadcast networks for airing one-off cuss words and an actress’s derriere. The case has tawdry tidbits but also carries significant financial and creative implications for the broadcasters. Here’s a primer.

What’s the big fuss about?

In 2002, Cher tossed an f-bomb during the Billboard Music Awards on Fox (NSDQ: NWS) and the next year Nicole Richie did the same and, for good measure, threw in the s-word. And in 2003, ABC (NYSE: DIS) showed Charlotte Ross’s bare bottom on an episode of NYPD Blue. The FCC found that all of these incidents violated a broadcast ban on indecency between 6 am and 10 pm. It declined to fine Fox but did impose a $27,500 fine on ABC for each station and affiliate that showed the nudity, for a total of about $1.25 million.

This sounds familiar. Didn’t the Supreme Court already decide this?

Yes, the court heard some of the same exact facts in 2009 in what became known as the “fleeting expletives” case. In a 5-4 decision, it ruled that the FCC had the power to sanction broadcasters for indecency over a single swear word, even if it was spontaneous and not planned by the broadcasters. The court did not hear the part about the actress’ tush.

Why is the issue back at the court so soon?

On the first go-around, the Justices looked at whether the law governing the FCC permitted the regulator to expand its policy to punish broadcasters for fleeting expletives. The broadcasters soon returned to court to try another tack, this time arguing that the policy violated the Constitution because it was too vague. The influential 2nd Circuit Court of Appeals agreed with them, meaning that the Supreme Court is now hearing many of the same facts — but this time looking at them in terms of the First Amendment.

What does the FCC say?

The FCC, fully backed by the Obama administration, says that it should be able to decide on a case-by-case basis when a single incident of swearing or nudity is indecent. It says this contextual approach is more effective than a blanket rule, especially as the broadcasters are sophisticated enough to know which acts cross the line. The government also says striking down the FCC policy could lead to graphic displays of oral sex, etc.

What do the broadcasters say?

ABC, Fox and others claim that the FCC’s current standard leaves them no idea what is indecent and what is not. They also say that the brief nudity in shows like NYPD Blue reflect a gritty realism, and that V-chips and warnings ensure that parents can prevent their children from seeing such scenes. The broadcasters also rely on a 1997 decision in which the Supreme Court struck down an attempt by Congress to regulate indecency on the internet.

What’s at stake?

For the broadcasters, a lot. The policy for them is not just a source of legal uncertainty. As the Wall Street Journal notes, the broadcasters would likely treat a victory as a license to introduce saltier content in the hopes of competing rough and realistic cable fare. In the bigger picture, there is the question of what to do about the spread of explicit material in society at large — does this mean that the FCC needs to be more vigilant than ever? Or is the regulator becoming irrelevant?

Based on last time, what’s going to happen?

The ruling last time was 5-4 and the court’s composition has changed. Justice Antonin Scalia will have a hard time recreating his majority, according to Supreme Court veteran, Lyle Denniston. And this time, there will be only eight judges sitting (Justice Sonia Sotomayor recused herself). In the case of a tie, the 2nd Circuit ruling will stand — meaning the broadcasters win.

Where is a good place to read more about this?

The venerable SCOTUS blog will have blog updates about the arguments which begin at 11 am. Reuters (NYSE: TRI), Bloomberg and the major papers will also have coverage later in the day.

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