Janet M. LaRue

The U.S. Supreme Court announced today that it will review a ruling by the U.S. Court of Appeals for the Second Circuit in FCC v. Fox permitting “fleeting,” as opposed to “repetitive,” use of the F-bomb and other indecencies on broadcast television during the hours when children are in the audience.

The case involves a January 2003 broadcast of the Golden Globes awards show by NBC, during which U2 lead singer Bono uttered the phrase “f——— brilliant.” A year later, the Federal Communications Commission (FCC) announced that the “F-word” in any context “inherently has a sexual connotation” and can be subject to enforcement action. Subsequently, the FCC ruled that four different TV programs were indecent under its revised policy, but did not impose any fines.

The networks, led by Fox, appealed the rulings. On June 4, 2007, a three-judge panel of the Second Circuit held 2-1 that it might violate the First Amendment if the FCC fines broadcasters for “fleeting” indecencies, and invalidated the rulings. However, the court did not outlaw the policy outright. It returned the case to the FCC, instructing the agency to try to provide a “reasoned analysis” for its new approach to indecency and profanity.” Both the FCC and the U.S. Solicitor General petitioned the Supreme Court to review the ruling.

In 1978, U.S. Supreme Court Justice John Paul Stevens wrote the Court’s landmark broadcast indecency ruling in FCC v. Pacifica Foundation. He summed it up well.

A nuisance may be merely a right thing in the wrong place – like a pig in the parlor instead of the barnyard. … We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene. 

Picture it this way:

  • Pig: Patently offensive words and pictures of sexual or excretory activities or organs such as: F***, M***** F*****, C*********, S***, P***, C***, T***
  • Pig herders: Broadcasters such as Fox, NBC, CBS, and ABC
  • Parlor: Your home when your kids are likely to be watching and listening.
  • Barnyard: Where pigs are supposed to be confined from 6 a.m. to 10 p.m.
  • Barnyard Regulators: the FCC

In a March 2007 Zogby poll, 79 percent of respondents agreed that there is too much sex, violence and coarse language on television. And the public has confirmed the polling results by filing hundreds of thousands of complaints with the FCC in the last few years. See this statement by FCC Chairman Kevin J. Martin.

Janet M. LaRue

Jan LaRue is Senior Legal Analyst with the American Civil Rights Union; former Chief Counsel at Concerned for Women; Legal Studies Director at Family Research Council; and Senior Counsel for the National Law Center for Children and Families. Be the first to read Janet LaRue's column. Sign up today and receive Townhall.com delivered each morning to your inbox.