Nine years after Cher used a swear word during a live awards show, the U.S. Supreme Court is finally addressing the constitutional issues behind that question. On Tuesday, the court will consider whether the Federal Communications Commission's efforts to police the U.S. airwaves for dirty words and images violate broadcasters' right to free speech and due process.
The court's decision, expected by June, could affect the broadcast-television industry, which has been losing viewers to cable channels, Internet video and other forms of entertainment that by law can't be touched by the FCC's indecency cops.
If the court sides with broadcasters, it might not just free them from the threat of multimillion-dollar indecency fines, but also lead to some networks experimenting with racier content or language that is commonplace on cable-channel rivals such as AMC or FX, industry officials say.
The cases before the high court involve Walt Disney Co.'s ABC and News Corp.'s Fox networks. News Corp. also owns The Wall Street Journal.
ABC was hit with a $1.4 million fine after showing the bare bottom of actress Charlotte Ross in a 2003 episode of "NYPD Blue." ABC argued that the episode wasn't indecent because Ms. Ross's bottom wasn't a "sexual organ" and there was no frontal nudity.
Fox got an earful from regulators after Cher used an expletive during the TV network' broadcast of the 2002 Billboard Music Awards.
The FCC warned Fox for the Cher incident in December 2002 after she used an expletive during the Billboard Music Awards and for a similar case involving reality-show personality Nicole Richie.
Fox, which wasn't fined, argues that it didn't run afoul of indecency rules because it didn't know the celebrities would swear and hadn't intentionally aired the words. Previously, the FCC had given broadcasters a pass for airing live, unscripted profanities, but that changed in 2003, after U2 singer Bono blurted out the F-word during the Golden Globe awards. Under pressure from watchdog groups, the commission said it would begin fining broadcasters for airing profanities, even those that were aired during live broadcasts.
Supreme Court precedents, in particular a ruling in 1978 involving the "Seven Dirty Words" act by comedian George Carlin, allow the FCC to regulate broadcast indecency during the hours between 6 a.m. and 10 p.m., when children are likely to be in the audience. Broadcasters can receive a fine of as much as $325,000 for each profanity or indecent image aired.
Station owners say the FCC's enforcement is so inconsistent it is almost impossible to figure what is permissible and what isn't.
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