Impromptu expletives OK, federal court says

WASHINGTON — In a victory for TV networks but a setback for efforts to shield children from coarse language, a federal court ruled Monday that broadcasters cannot be penalized for expletives that are considered impromptu.

The appeals judges in New York repudiated the Federal Communications Commissions' recent crackdown on broadcast indecency, calling its efforts "arbitrary and capricious."

TV networks long have complained that enforcement of the rules is inconsistent and unpredictable. Although the court's 2-1 decision sent the issue back to the FCC for rethinking, the strong rebuke prompted some advocacy groups and lawmakers to urge the agency to appeal to the Supreme Court.

"We are very pleased with the court's decision and continue to believe that government regulation of content serves no purpose other than to chill artistic expression in violation of the First Amendment," Fox Broadcasting said in a statement.

The case specifically involved two Fox broadcasts, and other networks joined in the lawsuit.

At issue has been a series of unscripted obscenities uttered in recent years by such performers as Bono, Cher and Nicole Richie during live awards shows. Networks argued they shouldn't be punished when an expletive slips through their safeguards.

Broadcasters have felt increasingly under siege after the exposure of singer Janet Jackson's right breast during the live halftime show of the 2004 Super Bowl, which CBS executives claimed caught them off guard. The resulting firestorm helped prompt Congress last year to approve a tenfold increase in fines that boosts the maximum penalty for a violation to $325,000.

But while broadcasters and Hollywood unions cheered the 2-1 decision by the 2nd U.S. Circuit Court of Appeals, FCC Chairman Kevin Martin blasted it.

"I view this as having a significant impact on our ability to enforce our indecency regime as to any restrictions on language," he said.

Martin defended the policy and said FCC attorneys soon would decide whether to appeal. The FCC could ask the entire 2nd Circuit to reconsider or go directly to the Supreme Court.

Commissioner Michael Copps, another strong opponent of broadcast indecency, promised a fight.

"So any broadcaster who sees this decision as a green light to send more gratuitous sex and violence into our homes would be making a huge mistake," Copps said in a written statement.

A network executive who requested anonymity said broadcasters still would use delays to try to bleep out expletives.

"It just means on the rare occasions where we might make a mistake or error despite our best efforts, it's going to be harder for the commission to cite that as indecency," the executive said.