The Supreme Court has accepted a case that will explore the first amendment protections of certain types of profanity uttered on the air by Bono, Cher and Nicole Richie. The question is whether the Federal Communications Commission (FCC) can punish broadcasters for “fleeting expletives” by such celebrities.
A “fleeting expletive” is an unplanned, one-time use of profanity of such things as the F-word. This is the first amendment counterpart to an “excited utterance” in evidentiary law. The question is whether the government can punish such slips by the stars. Fox Broadcasting Co., ABC, CBS and NBC are all challenging a new policy of such enforcement.
The new policy followed slips on entertainment awards shows in 2002 and 2003. The lower court found the policy to be violative of the first amendment. The 2-1 decision can be read here.
Bono used the F-word during the Golden Glodes in 2003. The other incidents involved slips during the “Billboard Music Awards.”
In the January 2003 broadcast of the Golden Globes awards Bono said something was “fucking brilliant.” During the Dec. 9, 2002, broadcast of the Billboard Music Awards, Cher used the phrase “Fuck ‘em” and a Dec. 10, 2003, Billboard awards show Nicole Richie asked “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”
Carter G. Phillips of Sidley Austin LLP, Washington D.C., is representing Fox. The oral argument will present an interesting challenge for Phillips in deciding whether to use the actual words. By using references to the “f-word,” he reinforces the perception of the word is too horrible to utter — even among adults in a non-broadcast setting of the Supreme Court. Yet, to say “fuck” in the Court would raise some eyebrows.
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The court will decide the question in FCC v. Fox Television Stations, 07-582.