Supreme Court Says FCC Can Fine Fleeting Expletives... For Now

from the next-up,-first-amendment-question dept

Tue, Apr 28th 2009 12:11pm — Mike Masnick

The FCC, under former chair Kevin Martin, suddenly took a much greater interest in fining network TV broadcasters for "fleeting expletives" -- generally live performances in which someone uttered a curse word. Prior to that, the FCC had generally ignored such "fleeting" uses and focused on more significant violations. So, when the FCC suddenly changed its policies and fined some TV networks, they sued, complaining that the change was arbitrary. In 2007, an appeals court agreed, calling the policy arbitrary and capricious. However, the Supreme Court has now reversed that, saying that it's within the FCC's power to make the determination of what policy it follows in regulating broadcast content.

However, the case is far from over. So far, this part of the case has only focused on whether or not the rule change was allowed. What hasn't been explored is that, if the rule change is allowed, is that new rule unconstitutional (as a violation of the First Amendment). That's the real question -- so all this stuff about whether the policy was arbitrary and capricious was more like the opening act for the First Amendment headliner that's about to happen. The case has now been sent back to the appeals court, where the free speech implications will be reviewed.

In the meantime, I'm still wondering why the liability should be on the broadcasters in the first place. If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault? Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all.

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Filed Under: fines, first amendment, fleeting expletives, free speech, supreme court
Companies: fcc, fox

48 Comments

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TheStuipdOne, 28 Apr 2009 @ 12:30pm

What ... ?
What is so horrible about curse words being on TV?

Protecting the children from hearing them I assume to be the reason they were banned.

When I was in grade school, I heard more curse words from other students every day than were in the "shit" epidode of South Park. Furthermore, a teacher got much more respect and was dramatically more effective if they said the occasional "shit" or "damn"

FCC, I think you should fuc^ yourselves to h3ll
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Anonymous Coward, 28 Apr 2009 @ 12:38pm

Re: What ... ?
Fuce themselves to hall??
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Tgeigs, 28 Apr 2009 @ 12:44pm

Liability
"Beyond just the free speech questions, I'm trying to figure out why the liability should be on the networks at all."

Not certain, just an opinion, but I would guess it's for two reasons:

1. The networks are fully in control of when/what/how they implement broadcasting choices that are vulnerable to the fleeting curses. For instance, carrying a live sports broadcast heightens the liklihood of fleeting curses, so the choice to carry that event w/o a 3 sec. delay or whatever comes w/certain risks/responsibilities.

2. As the peopel with ALL of the access to their broadcasting equipment, if anything is to be done, it would kind of have to be on their end, wouldn't it?

Now I'm not in favor of censorship, but I'm just trying to guess the logic.
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jilocasin (profile), 28 Apr 2009 @ 12:50pm

Umm because networks have the deepest pockets?
Perhaps it's because the networks are considered to have the deepest pockets?

Just a thought.
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Anonymous Coward, 28 Apr 2009 @ 12:55pm

Re: What ... ?
Well, let's just start allowing hardcore porn on network TV too. Bestiality? It's just an alternative lifestyle that should be embraced as different, rather than wrong. Society doesn't need standards of decency. We should decide for ourselves what how we want to live, without regard to the effects it may have on those around us? After all, no one gets hurt in the short term, and that's all that matters, right?
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Killer_Tofu (profile), 28 Apr 2009 @ 1:05pm

America & The Easy Target
I think this just furthers the idea that when you see or hear something you don't like, the idea seems to be to go after whoever is richest and / or (in most cases they are the same) the easiest target. This kind of thinking in America seems to be becoming more prevalent and it is annoying. Where did all of the responsibility and common sense go?
All of sudden it is just target the easy group.

Another recent example is the cook on the ship that was highjacked by the real Somali pirates. The cook is now suing his employer because they didn't sufficiently prepare the crew he is saying. They put him in harms way. Its pathetic. They aren't the ones robbing ships or trying to capture things for ransom.

It really is pathetic and just makes us look like idiots. Sad times.
Some of the largest examples of this are all of the major corporations or groups who keep suing other companies or blogs, etc for the actions of users. They made a tool, so they are being sued because of what a user used the tool to do. It really is stupid.
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lulz, 28 Apr 2009 @ 1:12pm

Re: America & The Easy Target
Because to them, the tool is the root of the problem. Those dissenters wouldn't have a voice if they had no forum to express it.
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Anonymous Coward, 28 Apr 2009 @ 1:28pm

As samuel jackson would say
I've had it with these monkey-fighting snakes on this Monday to Friday plane!
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aguywhoneedstenbucks, 28 Apr 2009 @ 1:36pm

Re: Re: What ... ?
Sounds good. The stations that want kids watching, or want to keep any sort of viewership (aside from single guys who are home alone) will continue to put out the same programming with the same language they have right now. It's about standards and practices and how many eyeballs they want. You'll get a LOT more eyeballs playing shows that are "family friendly" (notice I didn't say children's shows) than if you played shows with a lot of ass and titties.
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Jeff, 28 Apr 2009 @ 1:37pm

curse words
I was brought up in that cursing was wrong, and I still fell as an adult that cursing is definitely wrong. Do you actually know what a curse word is, its really more than words, you're actually "cursing" that other person. In my book at least that's even worse than expressing a dislike through merely words.

Its a good idea and it needs to be enforced
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Evil Mike, 28 Apr 2009 @ 1:41pm

Re: curse words
Good to see the small minded puritan ideals still live on. /sarcasm
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Tgeigs, 28 Apr 2009 @ 1:44pm

Re: curse words
Crucio!

Please tell me that was sarcasm, otherwise....tard.
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Cixelsid, 28 Apr 2009 @ 1:50pm

Re: Re: What ... ?
Holy shit, are you really comparing cursing on TV to bestiality?
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Glaze, 28 Apr 2009 @ 2:04pm

Re: curse words
if "god" didn't want us to swear, he would have never given us the ability to do so.
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David, 28 Apr 2009 @ 2:17pm

Re: What ... ?
The FCC fines the broadcasters because the FCC completely controls the broadcasters and can take their license to broadcast if they don't comply with their arbitrary whims.

They don't have nearly that much control over the people speaking.
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Anonymous Coward, 28 Apr 2009 @ 2:18pm

Re: Re: What ... ?
I have no problem with allowing hardcore porn on television. It's not my job to raise your kid. If you can't even control what they watch on television, you're really just not fit to be a parent.

As for bestiality, the animal cannot consent any more than a child can -- they lack the ability to reason that much, so, no, I would be against that.

"Society doesn't need standards of decency. We should decide for ourselves what how we want to live, without regard to the effects it may have on those around us?"

Apparently you wandered in from a different discussion. All we are discussing here is whether networks should be held liable and fined for things said by people not in their employ during live broadcasts. How that morphed into hard core porn and bestiality is a mystery to us all.

If you think that your home-schooled, Darwin-hating, creationist brood will somehow be scarred by hearing naughty words on TV, then turn the TV off. Or sell the TV. No one is forcing you or them to watch any particular television programming or any television at all. It's not the job of the rest of society to raise them. I'm tired of seeing good movies ruined with idiotic overdubs because nut-jobs like you get your panties in a twist every time someone curses.
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Jon, 28 Apr 2009 @ 2:23pm

This is an interesting case because obscenity laws are surely going to brought into play. As far as cursing being wrong, if that's how you feel, make sure your kids know. Just because they can't see it on TV doesn't mean that they won't hear it in school or a book. Its not the government's or the TV network's job to raise your kids.
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Anonymous Coward, 28 Apr 2009 @ 2:23pm

Re: curse words
"I was brought up in that cursing was wrong"

You were also probably told that Santa Claus, the Easter Bunny, and the Tooth Fairy were real. Cursing isn't wrong. Your parents parents made an error when they told you that it is wrong. Now move on with your life.

What is wrong is interfering with free speech. It's wrong to try to impose your personal, religious, and moral beliefs on others who don't share them.
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Anonymous Coward, 28 Apr 2009 @ 2:26pm

Re: Re: What ... ?
Would you like some oil for your slippery slope fallacy?
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Anonymous12, 28 Apr 2009 @ 2:35pm

Would you like some oil for your slippery slope fallacy?

You want to oil him down? This is exactly the type of content that shouldn't be on PUBLIC TV! (LOL)

Now for some actual debate:

For you free speech fanatics BTW (which I am in a good sense- I love the 1st Amendment, and the following 9 and the others as well), it is a shared airwave.
So sorry. Some people have generally accepted standards.
We all end up swearing, but for general presentation, and polite speech, it is discourgaged. Children watch TV generally in the afternoon, and generally tend to need more sleep, hence go to bed earlier, than adults. It's not facist censorship to set some guidelines if you are going to allow swearing. I think the editing is a little silly also at times, in movies for TV, but there are worse things.
DEAL WITH IT.
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The infamous Joe, 28 Apr 2009 @ 3:24pm

Re:
Who decides which words are naughty and which are nice? I know I wasn't asked.

Also, you "cursing is bad" people need to realize that it's not the word you need to worry about, it's the idea behind the word.

For example, if, instead of saying "fuck" I started to say "flip", and it caught on enough that everyone said "You should have seen the girl I flipped last night." or "Go flip yourself, you flipping flipper!" would you advocate to censor the word "flip" from your children?

The word only has power because of the ideas behind it. Go ahead and start your crusade against naughty thoughts. I'll wait.
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Anonymous Coward, 28 Apr 2009 @ 3:36pm

#9
MMMMMM.... Ass and titties.. Where do I sign up @?
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Anonymous Coward, 28 Apr 2009 @ 3:41pm

Whose Fault
If Cher or Nicole Ritchie utter a curse word while on live TV, how is that the network's fault?

Well, it's not generally illegal for Cher or Nicole Ritchie to curse. It is, however, illegal for television stations to broadcast it.
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Anonymous Coward, 28 Apr 2009 @ 3:41pm

Re: Re: What ... ?
Yep, pretty much.
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Anonymous Coward, 28 Apr 2009 @ 3:44pm

Re: curse words
"its really more than words, you're actually "cursing" that other person."

Seems to me, if someone says "get f*cked" to me, they're wishing me well, good luck, as it were.... But that's just my POV. ;)
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Anonymous Coward, 28 Apr 2009 @ 3:48pm

Its called a V chip you can filter out the bad words
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Esahc (profile), 28 Apr 2009 @ 3:49pm

Re: curse words
With that logic when I say Fu*k you to someone, I'm actually saying I want to F*ck them; how is that a curse? A curse by your definition is saying "damn you to hell", which I believe is fine to say on TV
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Anonymous Coward, 28 Apr 2009 @ 3:54pm

Re: Re: Re: What ... ?
As for bestiality, the animal cannot consent any more than a child can -- they lack the ability to reason that much, so, no, I would be against that.

In that case, shouldn't we also prevent animals from having sex with each other? I mean, if they can't consent then allowing them to do so is obviously animal cruelty.
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Anonymous Coward, 28 Apr 2009 @ 3:54pm

V-Chip
We don't need no stinkin' FCC decency rules, we got the V-chip!
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Boy Lover, 28 Apr 2009 @ 4:07pm

Re: Re: curse words
"What is wrong is interfering with free speech. It's wrong to try to impose your personal, religious, and moral beliefs on others who don't share them."

Yeah, I don't know where some people get the idea that some things are just "wrong".

http://www.nambla.org/
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Anonymous Coward, 28 Apr 2009 @ 4:17pm

Re:
This is an interesting case because obscenity laws are surely going to brought into play.

Huh? I don't think any of the involved parties is claiming that obscenity is involved, so why would obscenity laws be "brought into play"? That just doesn't make any sense.
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Anonymous Coward, 28 Apr 2009 @ 4:21pm

Re: Re:
For example, if, instead of saying "fuck" I started to say "flip", and it caught on enough that everyone said "You should have seen the girl I flipped last night." or "Go flip yourself, you flipping flipper!" would you advocate to censor the word "flip" from your children?
If that was what flip came to generally mean then, yes, I would.
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Anonymous Coward, 28 Apr 2009 @ 4:26pm

Re: Re: curse words
"You were also probably told that Santa Claus, the Easter Bunny, and the Tooth Fairy were real. Cursing isn't wrong. Your parents parents made an error when they told you that it is wrong. Now move on with your life."

wait are you saying Santa Claus, the Easter Bunny, and the Tooth Fairy aren't real!!!!!!!
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Jan Hopmans (profile), 28 Apr 2009 @ 4:34pm

Because we all know that because cursing & tits on TV are bad for society...

That must be the reason why we in the Netherlands have one of the lowest teen pregnancy's in the world and even at 12:00 it's totally normal to see an ass on TV, while the U.S. has one of the highest. We are open about our sexuality, even on TV. Marijuana is allowed, and talked about on tv, still the percentage of drug users is lower.

Yes it actually is! Come to the Netherlands and watch it. We openly talk about sex. Censorship won't help shit, it will only make things worse. This is just what I wanted to say.

Example of a certain Dutch TV-show on public TV. 'Spuiten en Slikken' ,means as much as 'inject/squirt and swallow', it's about sex & drugs.
Video of last episode (legal): http://player.omroep.nl/?aflID=9388826

Just had to say this about censorship, if I watch TV from other country's that is one of the things I hate.
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Anonymous Coward, 28 Apr 2009 @ 5:01pm

Re:
Your lower teen pregnancy rates have absolutely nothing to do with how much ass you show on TV.
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Anonymous Coward, 28 Apr 2009 @ 5:22pm

Re: Re:
Your lower teen pregnancy rates have absolutely nothing to do with how much ass you show on TV.

So that means that such programming has no effect on children. So there really is no justification for FCC "decency" regulation "for the children", is there?
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Rekrul, 28 Apr 2009 @ 6:16pm

So children will be protected from hearing bad words on TV. Meanwhile they can go to YouTube 24/7 and watch any video they want, which are completely uncensored as far as language is concerned. Sure, YouTube has a simple age restriction, but there's no verification that the age you give is accurate.
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the ox, 28 Apr 2009 @ 7:57pm

Re: Re: curse words
"What is wrong is interfering with free speech. It's wrong to try to impose your personal, religious, and moral beliefs on others who don't share them."

I was originally going to call your statement (above) an OXYMORON, but have since discovered that an oxymoron is an "intentional" use of contradiction for rhetorical effect. However, I suspect that you did not intend the contradiction that is in these ideas so easily and widely expressed these days. So... instead, I'll call it a paradox or an irony.

How can you defend that your: "It's wrong to..." thoughts isn't--in fact--not--but your "imposing your personal beliefs on others who don't share them"? Are you not taking a "moral" position yourself?

Perhaps use of the words such as: "values", "mores", and "taboo" might settle better on many folks because using the word "moral" perhaps carries a stronger connotation of mores and taboos that imply that they come from a divine source or otherwise from some religious dogma.

Just as you might say that there are those who would "impose" their religious dogma upon you--others would claim that YOUR religious dogma imposes upon their freedoms. You may choose not to call YOUR views religious. However, it is a form of dogma none-the-less and I see it as coming from another "religion" than what I believe in. It's just dressed in different clothing. Oh, and yes it is an "organized religion". It's very well canned.
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Deicidal maniac, 28 Apr 2009 @ 8:51pm

Re: Re: Re: curse words
Wait, are you saying my freedom of speech somehow infringes on your rights to close your eyes and stick your fingers in your ears? It is not the source of your values that is at issue, but the the fact that some will try to force their values upon others. Most people are happy to follow their own code of ethics, while others believe in some kind of behavioural rulebook set forth by a mythical super-being, and set forth to punish/censor anyone who disagrees. These we call religious nutjobs.
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RockDJ, 28 Apr 2009 @ 10:11pm

I Have Heard this Before!!
Two words people...George Carlin
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the ox, 29 Apr 2009 @ 3:41am

Re: Re: Re: Re: curse words
"Wait, are you saying my freedom of speech somehow infringes on your rights to close your eyes and stick your fingers in your ears?"

Well... that depends upon what you have said and on why I'd need to close my eyes. If I do close my eyes and cover my ears...I guess it might be to protect myself from what I think might hurt me. We might differ in what we think will hurt another person. Does one side of the equation get the upper hand in saying what is hurtful and what is not? (Reminds me of when my daughter came crying with tears: "He pinched me!" My son came in and pinched his own arm and said: "See, it doesn't hurt!")

Should I ask you if you would please give me enough warning so that I can close my eyes before you throw sand at me. Yes I do have the right to close my eyes. And if you keep throwing sand in them, I suppose that I will assert my rights by keeping you away from the sandbox while you are at my house. :-)

"My rights end where yours begin". Just like what we all have had to learn (hopefully) while playing in the sandbox when growing up. Give and take and sharing. Freedom of speech is very important. But it seems that we need to consider if it might be a different issue when we are broadcasting potentially to every household over the air waves that all of us supposedly own.

I think that Boy Lover (above) said it much better than all of my ramblings here: ...

"Yeah, I don't know where some people get the idea that some things are just "wrong"."
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Jan Hopmans (profile), 29 Apr 2009 @ 5:46am

Re: Re: Re: Re: Re: curse words
It's just that there isn't any proof that your rights end. =)

Actually quite to opposite, look at my latest post. We have a lower amount of teen pregnancy, drug users because we are open about it. Not because we remove a word while everyone knows what it said.
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Just Curious, 29 Apr 2009 @ 6:54am

I always wondered who was giving the right to declare certain words as "bad"?

I can say dang but not damn? crude not shit? arse not ass? why? seems silly to me.
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Cynthia Meyers (profile), 29 Apr 2009 @ 11:27am

why broadcasters are responsible
Actually, local stations are responsible for not allowing indecent material on air; when they carry a network feed, the networks usually cover the fines (to keep their affiliates happy) but not always, and usually pursue the legal challenges. (The FCC only regulates the actual broadcasters, local stations, not networks.)

The reason the broadcasters are liable is because when the Comm Act of 1934 was passed, requiring broadcasters who get a monopoly on a piece of the spectrum to act in the Public Interest Convenience and Necessity (PICON), their 1st Amendment rights were thereby limited. Print media has a 1st amendment right to print indecent material, but broadcasting was assumed to be an invasive or pervasive medium, less controllable by receivers than print, and so had to abide by different rules in order to protect audiences from inadvertent exposure to damaging content.

Tape delays are the usual solution to the problem of spontaneous expletives--most network feeds use this since it became clear during the Janet Jackson nipple exposure incident that the FCC would be punishing broadcasters for fleeting indecency (as the FCC defined it).

By the way, cable networks and operators have full 1st amendment rights (because viewers pay and request the service), and so whatever beeping of expletives you see on cable networks is solely a function of the networks' decision to cater to its perception of its audience (among whom may be some offended by expletives), not because of any FCC regulations.
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BTR1701, 29 Apr 2009 @ 12:18pm

Re: Re: Re: Ideas
> If that was what flip came to generally
> mean then, yes, I would.

So it's not the word, it's the idea you object to?

If so, then why aren't you advocating that all mention of sex be banned from TV, regardless of which words are used to refer to it?
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Anonymous Coward, 29 Apr 2009 @ 6:28pm

Re: Re: Re: Re: Ideas
So it's not the word, it's the idea you object to?

For children, yes. And by that token I would object to words that mean the same thing in other languages as well.

If so, then why aren't you advocating that all mention of sex be banned from TV, regardless of which words are used to refer to it?

I would probably object to most all graphic descriptions of sexual activity, verbal or otherwise, on broadcast television where children are likely to encounter them.

I know some would disagree with me. I've even known of parents who purposely taught their young children all manner of foul language because they thought it was "cute", and then encouraged them to run around in the grocery store shouting it out at people because it was "funny". I disagree with such behavior.
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Anonymous Coward, 30 Apr 2009 @ 10:44am

Re: why broadcasters are responsible
The reason the broadcasters are liable is because when the Comm Act of 1934 was passed, requiring broadcasters who get a monopoly on a piece of the spectrum to act in the Public Interest Convenience and Necessity (PICON), their 1st Amendment rights were thereby limited.

Then why doesn't that apply to satellite broadcasters?

By the way, cable networks and operators have full 1st amendment rights (because viewers pay and request the service)

Don't television viewers do the same when they tune to a station?
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Anonymous Coward, 30 Apr 2009 @ 6:02pm

Re: Re: why broadcasters are responsible
I meant don't television viewers request service when they tune to a station? (I know they don't pay)
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