The ruling was based on administrative rather than constitutional law and focused on whether the Federal Communications Commission had provided an adequate explanation for changing a longstanding policy that had effectively provided a safe harbor for “fleeting expletives.”
“The commission could reasonably conclude,” Justice Antonin Scalia wrote for the majority, “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 Scalia added that the looming First Amendment question in the background “will be determined soon enough, perhaps in this very case.”
The decision provided hints that the court might approach the constitutional question differently. Some dissenting justices and Justice Clarence Thomas, who was in the majority, indicated that they might be receptive to a First Amendment challenge.
Justice Thomas, in a concurrence, said he was “open to reconsideration” of two cases that gave television broadcasters far less First Amendment protection than books, newspapers, cable programs and Web sites have.
Justice Ruth Bader Ginsburg, dissenting, wrote that “there is no way to hide the long shadow the First Amendment casts over what the commission has done.” Justice Ginsburg added, “Today’s decision does nothing to diminish that shadow.”
The Supreme Court’s last major case concerning broadcast indecency, F.C.C. v. Pacifica Foundation in 1978, upheld the commission’s determination that George Carlin’s classic “seven dirty words” monologue, with its deliberate, repetitive and creative use of vulgarities, was indecent. But the court left open the question of whether the use of “an occasional expletive” could be punished.
The case decided Tuesday, Federal Communications Commission v. Fox Television Stations, No. 07-582, arose from two appearances by celebrities on the Billboard Music Awards.
Justice Scalia read the passages at issue from the bench, though he substituted suggestive shorthand for the dirty words.
The first involved Cher, who reflected on her career in accepting an award in 2002: “I’ve also had critics for the last 40 years saying I was on my way out every year. Right. So F-em.” (In his opinion, Justice Scalia explained that Cher “metaphorically suggested a sexual act as a means of expressing hostility to her critics.”)
The second passage came in an exchange between Paris Hilton and Nicole Richie in 2003 in which Ms. Richie discussed in vulgar terms the difficulties in cleaning cow manure off a Prada purse.
Reversing its policy on such fleeting expletives, the commission said in 2006 that both broadcasts were indecent. It did not matter, the commission said, that some of the offensive words did not refer directly to sexual or excretory functions. Nor did it matter that the cursing was isolated and apparently impromptu.
The commission imposed no punishment but suggested that further offenses might be subject to fines. The federal appeals court in New York ruled against the commission in 2007, finding that the reasons it offered for the changed policy were inadequate.
In reversing that decision, Justice Scalia said the change in policy was rational and therefore permissible. “It was certainly reasonable,” he wrote, “to determine that it made no sense to distinguish between literal and nonliteral uses of offensive words, requiring repetitive use to render only the latter indecent.”
Justice John Paul Stevens, dissenting, wrote that not every use of a swear word connoted the same thing. “As any golfer who has watched his partner shank a short approach knows,” Justice Stevens wrote, “it would be absurd to accept the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent.”
“It is ironic, to say the least,” Justice Stevens went on, “that while the F.C.C. patrols the airwaves for words that have a tenuous relationship with sex or excrement, commercials broadcast during prime-time hours frequently ask viewers whether they are battling erectile dysfunction or are having trouble going to the bathroom.”
Justice Scalia’s majority opinion was joined by Chief Justice John G. Roberts and Justices Thomas and Samuel A. Alito Jr. and, for the most part, by Justice Anthony M. Kennedy.
Justices Stevens, Ginsburg and David H. Souter joined Justice Breyer’s dissent. Four justices wrote concurrences or dissents speaking only for themselves.