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BYU study: Curbing cussing within First Amendment, dang it!

Article examines profanity as Supreme Court sets to deal with it

Just as the U.S. Supreme Court prepares to hear a major case about broadcast indecency for the first time in 30 years, a new study from Brigham Young University points to evidence that society can and does put limits on profanity without undermining the First Amendment.

"The paper doesn't argue that broadcast profanity necessarily should be regulated," said BYU communications professor Ed Carter, lead author on the study. "It says that if Congress and the FCC decide to regulate profanity, which they have done, the Supreme Court has never said anything that would stop them from doing it."

The article appears in the November issue of the Hastings Communications and Entertainment Law Journal, a publication of University of California Hastings College of the Law in San Francisco.

On Nov. 4, the Supreme Court heard oral arguments in FCC v. Fox Television Stations, which centers on the question of whether certain four-letter words can be used on live broadcast TV without repercussion.

Carter and co-authors Trevor Hall (of Boise State University) and James Phillips (a BYU graduate student) undertook research on the topic after the Second Circuit Court of Appeals ruled in June 2007 that the FCC wrongly fined broadcast networks for airing "fleeting expletives" because the FCC had not clearly explained why it changed a policy of tolerance for once-uttered cuss words.

The article examines the history of judicial treatment of profane language, and finds that the common law for hundreds of years treated public profanity as a punishable nuisance. Even in contemporary society, profanity is regulated in various settings without violating the Constitution.

To show that "profanity is not, indeed, everywhere," the study points out that debt collectors are subject to federal penalties for using profanity and that lawyers, litigants and even judges can face penalties if they use profanity in a court room. Additionally, profanity has led to discipline for public school students and teachers, prison inmates and guards, and corporate employees, among others.

"We found that in contemporary society, we still consider the F-word inappropriate in some cases," Carter said. "Whether broadcast television remains one of those places will hinge first on the Court's determination of whether the FCC followed proper procedures for instituting its new regulation of profanity."

While the Supreme Court has protected, as free speech, the use of profanity under some circumstances, the Court's opinions on the subject do not preclude regulation of broadcast profanity, the authors conclude.

In fact, the authors discuss Court precedents on privacy suggesting profanity that might be protected as free speech in public could nevertheless be subject to regulation when it enters the privacy of the home.

"The court has a lot of language that says there is a special place for the home in society," Carter said. "Yeah, you can always turn your TV off, but I think there is a sentiment that, while people may tolerate it on the street corner, they may not tolerate it in their home."

The case to be argued was originally filed by Fox (and later joined by the other broadcast networks) in response to fines stemming from live broadcasts of the F-word uttered by, respectively, the global rock star Bono at the 2003 Golden Globe awards; actress Cher at the 2002 Billboard Awards; and socialite celebrity Nicole Richie at the 2003 Billboard Awards.

Writer: Angela Fischer

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