Supremes get set to decide to decide

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The FCC loss at the Second Circuit over its ability to levy punishment to broadcasters over instances of fleeting indecency has been appealed to the Supreme Court. The high court has now indicated it will decide whether or not to take the case at the end of the month, on 2/29/08. The case concerned an f-bomb dropped by U2 frontman Bono during an awards show on Fox Television Network. The other three major networks are siding with Fox.


The FCC standard for indecency for years centered on the use of sexual or excremental language, repeated with the intention to pander and/or titillate. Accidental slip-ups were generally brushed aside. That all changed after the Janet Jackson Super Bowl incident. The Enforcement Bureau had already ruled that the Bono and other similar incidents fell under the fleeting and inadvertent exception, but EB found itself reversed by Powell, who essentially decreed that an f-bomb was actionable by itself.

Some have supported that decision since certain words go beyond indecency and into obscene territory, but the argument against is that the FCC changed the rules all of a sudden without putting the matter before the public for comment. It is also argued that making fleeting slip-ups actionable will have a chilling effect on live programming, particularly with the new 350K fines available in the FCC enforcement arsenal.

Against this backdrop, Congress has been trying to put a law on the books that would back the FCC’s claim to an ability to take action against fleeting slip-ups with legislation clearly granting it that power.

RBR/TVBR observation: For awhile the slip-ups seemed to be coming from the edgier portion of the entertainment community, but the most recent incidents have involved personalities with plenty of experience before cameras and live mics, including Chris Matthews, Diane Keaton and Jane Fonda. Even President George W. Bush was caught off-color before a live mic at a diplomatic function. In none of these cases has civilization come to a screeching halt. The fleeting rule works just fine, and some leeway must be granted broadcasters to assure their ability to provide any live programming without risking their bank account. The Supreme Court should not waste its time on this one.