Fleeting expletives and wardrobe malfunctions: FCC vs Fox Television and CBS

Can television broadcasters, particularly of live events, be fined if the FCC deems some of the language offensive?

"Taboo language," particularly when broadcast over Federally regulated radio spectrum is a contentious class of repugnant transactions. Some of the relevant jurisprudence was discussed in a memorably titled (and clearly and informatively written) article by the OSU law professor Christopher Fairman: "Fuck," 28 Cardozo Law Review 1171 (2007).

There have been some pretty funny "workarounds" to avoid the wrath of the FCC, such as the frequent use of the neologism "frak" on the now-ended tv series Battlestar Galactica.

All this is brought to mind by the recent Supreme Court review of the case FCC v. Fox Television Stations. The FCC derives its authority to regulate language from regulations regarding sexual content. So the question before the court is, when someone like Bono says that an award is "fucking brilliant," does that statement have sexual content? (Judge for yourself, at around minute 5:40 in this video of the 2003 Golden Globes award in which U2's song "The Hands that Built America" won a best song award for the film The Gangs of NY.)

It's entertaining to read a carefully worded NY Times account of the recent Supreme Court decision sending the case back to a lower court. The column, called Gentlemen Cows in Prime Time, doesn't use any of the offensive words, and the title of the column is explained in the text:
"In 1623, the English Parliament passed legislation to prohibit “profane swearing and cursing.” Under that law, people could be fined for uttering oaths like “upon my life” or “on my troth.” In the Victorian era, the word “bull” was considered too strong for mixed company; instead, one referred to “gentlemen cows.” Times change, notwithstanding the fervent wishes of prescriptivists to keep dirty words dirty. "

Another account in plain (Anglo-Saxon) English: You Can't Say That On Television, makes it easier to understand the context of the case.

The Supreme Court also sent back to a lower court the case of Janet Jackson's Superbowl "wardrobe malfunction." The FCC had fined CBS, an appeals court eventually overturned the fine, and now the issue is up for grabs again: Court Sends Janet Jackson Case Back for Review.
"The high court on Monday directed the 3rd U.S. Circuit Court of Appeals in Philadelphia to consider reinstating the $550,000 fine that the Federal Communications Commission imposed on CBS over Jackson's breast-baring performance at the 2004 Super Bowl.
The order follows the high court ruling last week that narrowly upheld the FCC's policy threatening fines against even one-time uses of curse words on live television.
In a statement, CBS said the Supreme Court's decision was not a surprise given last week's ruling and expressed confidence the court will again find the incident was not and could not have been anticipated by the network.
Last year, the appeals court threw out the fine against CBS, saying the FCC strayed from its long-held approach of applying identical standards to words and images when reviewing complaints of indecency.
The appellate court said the incident lasted nine-sixteenths of one second and should have been regarded as "fleeting." The FCC previously deviated from its nearly 30-year practice of fining indecent broadcast programming only when it was so "pervasive as to amount to 'shock treatment' for the audience," the court said.
The FCC appealed to the Supreme Court. The case had been put off while the justices dealt with a challenge led by Fox Television against the FCC's policy on fleeting expletives.
The case is FCC v. CBS Corp., 08-653. "