WASHINGTON -- The Supreme Court Tuesday seemed split over the threat that vulgar words broadcast on television might pose to American children.

A liberal justice questioned the Bush administration's crackdown on broadcasters, while a conservative justice suggested television had helped desensitize viewers to offensive language.

Weighing the 'Bono Rule'

See some of the incidents that have drawn criticism from the FCC.

Last year, a federal appeals court in New York struck down a 2004 Federal Communications Commission rule penalizing the broadcast of "fleeting expletives." That court found the FCC had been "arbitrary and capricious" in abandoning its prior policy, under which it generally ruled that isolated vulgarisms weren't enough to trigger the legal standard of indecency.


None of those programs has yet been accused of violating decency standards. The major broadcast networks are parties to the case, including Fox Television, a unit of News Corp., which also publishes The Wall Street Journal.

Justice Ruth Bader Ginsburg showed little sympathy for the government's position, saying the FCC's policy seems inconsistent. She noted that the commission cleared broadcast of the expletive-filled war movie "Saving Private Ryan," yet fined a PBS station for airing a Martin Scorsese documentary on blues musicians, some of whom spoke in off-color language.

"There seems to be very little rhyme or reason to when the commission says that one of these words is OK and when it says it isn't," she said.

Chief Justice John Roberts asked how the FCC justified punishing some programs for airing a fleeting expletive, while clearing the CBS "Early Show" when it broadcast a vulgarism uttered by a reality-show contestant.

"The commission has determined that news programs would be treated differently," Mr. Garre said, "because of the different values present in that situation." For the same reason, he said the FCC wouldn't punish broadcast of a news report on the Supreme Court argument itself, even if it included the words at issue.

The court last spoke on broadcast indecency in 1978, when it upheld the sanction of a radio station for its afternoon broadcast of a George Carlin routine called "Filthy Words" (which was itself a satire of television censorship). But the court left open the issue of isolated words.

Cher used an obscenity on air during an awards program in 2002. Getty Images

Justice Anthony Kennedy asked attorney Carter Phillips, representing broadcasters, if "contemporary community standards for the broadcast medium"-the legal test-had changed since 1978.

"I believe society is significantly more tolerant of those words today than it was 30 years ago," Mr. Phillips said.

"Do you think your clients had anything to do with that?" asked Justice Antonin Scalia. He suggested the commission had met its burden for the crackdown because the sexual or excretory connotations of an expletive-part of the indecency definition-were "precisely" the reason for using such a word. "That's what gives it its zing," he said.

Justice John Paul Stevens-who wrote the 1978 opinion holding the Carlin routine indecent-suggested the issue might boil down to whether a word that can describe sexual or excretory functions is "equally indecent if used for a different purpose."

Although neither of the two four-letter words the FCC has punished was uttered in the courtroom, Justice Stevens asked Mr. Garre if "the use of the word "dung," D-U-N-G, would be indecent."

"I think it probably would qualify" as dealing with excretory functions, he said, "but it probably wouldn't be patently offensive under community standards for broadcasting."

The fleeting expletive rule originated in 2003, after the rock star Bono said on live television that winning a Golden Globe award was "really, really f--ing brilliant!" Appalled, the FCC's commissioners declared that the F-word "invariably invokes a coarse sexual image" and that its "isolated and gratuitous" utterance could be punished "to safeguard the well-being of the nation's children from the most objectionable, most offensive language." The Supreme Court's decision is expected by June.

Write to Jess Bravin at jess.bravin@wsj.com