Las Vegas Weekly

November 5, 2008 · 9:06 AM

What election? The F-word takes center stage in the Supreme Court

By Robin Leach

Cher.

Photo: AEG

In the hallowed halls of the nation’s capital, election news took a back seat to the F-bomb yesterday. But the Supreme Court justices and the respectful attorneys danced around the F-word. Nobody dared utter the word itself during the trial hearing, which centers on the expletive our Caesars Palace headliner, Cher, spoke clearly on a live Vegas telecast.

Sensitivities in the Supreme Court regarding the use of coarse language on TV were so strong, the justices even barred the usual audio feed for C-SPAN. Instead, the network showed a mock trial from the College of William & Mary, and students there dropped both the F- and S-bombs!

Fox Broadcasting vs. The FCC is a case involving comments made by Cher and Nicole Richie at the Billboard Music Awards from Vegas back in 2002. Cher had said “f*** ’em” when dismissing her critics during the telecast! Ironically, the F-word was also used on Fox by Chase Utley when his Philadelphia Phillies recently won the World Series, and the students in the mock trial played that up, too, but it wasn’t mentioned in the high court.

Picture the black-robed justices watching and listening -- the business-suited government officials and the Fox lawyers arguing their respective stances -- without once mentioning the word itself. The parties are arguing a new government ruling that punishes TV networks for even a one-time, fleeting swear word -- that’s in addition to a stream of profanities barred over the regulated airwaves. In the somber august and majestic courtroom, the legal eagles had to dance verbal hoops around the F-word, referring to it as “swearing,” “the expletive,” “the F-word,” “the F-bomb” and “freaking.”

Chief Justice John Roberts debated with an attorney for Rupert Murdoch’s Fox network, which aired the Cher and Richie remarks, whether such words inherently denote offensive “sexual or excretory activities” -- the definition the Federal Communications Commission’s used to cite Fox in the first place for broadcasting indecent material. The justices will eventually rule on what can and can’t be said on radio and TV as part of a broad culture clash about increasing profanity on government-licensed airwaves. The cable industry and satellite radio is not government-regulated.

Even though the government has had decency standards in place since the 1920s, where the FCC prohibits the broadcast of sexual or excretory content from 6 a.m. to 10 p.m. -- when children are most likely to be part of the audience -- the entire issue really flared up after the split-second TV exposure of singer Janet Jackson’s breast during the 2004 Super Bowl halftime show. Hundreds of thousands of viewers complained, prompting the FCC to change a long-standing policy that only repeated use of on-air expletives would be punished. The commission didn’t fine Fox for the Cher and Richie incidents because the policy was new but made it clear that further fleeting or one-time use of obscenities could draw punishment. TV networks protested, but Congress in 2006 raised the maximum indecency fine from $32,500 to $325,000.

After the “bounds of decency” bill was signed into law, Fox filed suit, arguing that the FCC’s policy change was arbitrary and that the designation of the fleeting F-words as indecent violated the broadcaster’s First Amendment rights. A federal appeals court in New York agreed, issuing a 2-1 decision last year that broadly questioned whether the FCC still has the right to police the airwaves for offensive language. The government then petitioned the Supreme Court, which agreed to hear its first substantial case on broadcast indecency since a 1978 decision that said comedian George Carlin’s “seven dirty words” monologue was indecent. Government lawyers yesterday urged the justices to back the FCC, saying that upholding the appellate ruling could lead to “a world where the networks are free to use expletives 24 hours a day.” Everyone acknowledges that a word like the F-word is one of the most vulgar, graphic and explicit words in the English language in describing sexual activity, said the solicitor general.

The hearings continue today, and it may well be six months before the Supreme Court justices announce their decision. Cher is not required to give testimony in the case. Meanwhile, bet on it that she will use the word and make a joke out of it when she returns to her next set of concerts at Caesars Palace Colosseum in February.

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