Supreme Court says FCC can ban expletives

WASHINGTON – The Supreme Court Tuesday upheld the Federal Communications Commission ban on one-time utterances of certain expletives over the nation’s airwaves, but held out the possibility that such a policy eventually might not survive constitutional scrutiny.

The court’s narrow, 5-4 ruling said the FCC – prompted by Cher and other celebrities cursing on television – was within its powers when it changed its policy in 2004 and subjected broadcasters to fines of up to $325,000 for allowing the use of certain expletives on the air.

“The commission could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justify more stringent regulation of broadcast programs so as to give conscientious parents a relatively safe haven for their children,” Justice Antonin Scalia wrote for the majority. “We decline to substitute our judgment for that of the agency, and we find the commission’s orders neither arbitrary nor capricious.”

Fox Television and other networks had challenged the agency’s actions under the Administrative Procedures Act, saying it did not adequately explain its reason for changing its policy. The networks also challenged the rule under the First Amendment.

But the U.S. Court of Appeals for the Second Circuit in New York did not rule on the constitutional question, and the Supreme Court also declined to do so.

“Whether (the policy) is unconstitutional will be determined soon enough, perhaps in this very case,” Scalia wrote in sending the case back to the appeals court. “We see no reason to abandon our usual procedures in a rush to judgment without a lower court opinion. We decline to address the constitutional questions at this time.”

Justice Clarence Thomas, who aligned with the majority on the question of whether the agency had the power to change its rule, said he was “open” to a review of the court’s precedents that allowed a “deep intrusion into the First Amendment rights of broadcaster.”

Justice Ruth Bader Ginsburg, who dissented, seemed to welcome a constitutional challenge as well. “There is no way to hide the long shadow the First Amendment casts over what the commission has done,” Ginsburg wrote. “Today’s decision does nothing to diminish that shadow.”

Chief Justice John Roberts, Justices Anthony Kennedy and Samuel A. Alito Jr., Thomas and Scalia formed the majority that upheld the FCC’s action.