High court hears battle over dirty words

WASHINGTON — It's not every day that a top lawyer for the Bush administration, standing before the justices of the Supreme Court, invokes the specter of "Big Bird dropping the F-bomb on Sesame Street."

Yet it was that kind of morning in the courtroom, where the justices Tuesday weighed a new government policy that can punish television networks for a one-time, or "fleeting" expletive, as opposed to a stream of profanities.

The case came about after singer Cher dismissed her critics by saying "(expletive) 'em" during a live 2002 awards show, and celebrity Nicole Richie told millions of viewers in 2003: "Have you ever tried to get cow (expletive) out of a Prada purse? It's not so (expletive) simple."

The argument began with the typically sober discussion of weighty legal issues. But the lawyers were soon jumping through hoops to avoid saying the words at issue, trying everything from "these words" to the F-bomb and "freaking."

Chief Justice John Roberts debated with a lawyer for Rupert Murdoch's Fox network, which aired the Cher and Richie remarks, whether such words inherently denote offensive "sexual or excretory activities," the definition the Federal Communications Commission (FCC) used to cite Fox for broadcasting indecent material.

Roberts asked rhetorically, "Why do you think the F-word has" such power? "Because it's associated with sexual or excretory activity; that's what gives it its force."

Justice John Paul Stevens, 88, triggered laughter when he asked whether the FCC would sanction a broadcaster if the indecent remark "was really funny." Solicitor General Gregory Garre said it might depend on the context.

"So bawdy jokes are OK, if they're really good," Justice Antonin Scalia cracked, to more laughter.

Stevens also asked whether "dung" would be indecent (Garre said probably not) and Justice Stephen Breyer added the observation that during live television "you're dealing with a cross section of humanity, and my experience is that some sections of that cross section swear."

But nary a curse word was heard in the case, which culminated a battle over what can be said on radio and television.

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

Even with those rules, there have been periodic flare-ups over what can be said on air. The issue heated up after the 2004 Super Bowl halftime show.

Hundreds of thousands of viewers complained, prompting the FCC to change a long-standing policy that held that only repeated use of on-air expletives would be punished.

The commission didn't fine Fox for the Cher and Richie incidents because the policy was new but made it clear further "fleeting," or one-time, use of obscenities could be punished.

Congress in 2006 raised the maximum indecency fine from $32,500 to $325,000. President Bush signed the bill.

Fox filed suit, saying the FCC's policy change was arbitrary and the designation of the fleeting F-words as indecent violated the broadcaster's First Amendment rights. A federal appeals court in New York agreed.

The Bush administration petitioned the Supreme Court, which agreed to hear its first substantial case on broadcast indecency since a 1978 decision that said comedian George Carlin's "seven dirty words" monologue was indecent.

Garre urged the justices to back the FCC, saying that upholding the appellate ruling could lead to "a world where the networks are free to use expletives 24 hours a day," including, he said, the Big Bird "F-bomb" scenario.

Carter Phillips, an attorney for Fox, questioned what he called the FCC's shifting definitions of indecency and raised the specter of stations being afraid to broadcast live events for fear that someone might curse.