• by Wayne Friedman , April 28, 2009

In a major blow for TV broadcasters, the highest U.S. court has approved government regulation -- and possibly fines -- for the use of "fleeting" profanity during live TV broadcasts. 

The Supreme Court has decided broadcasters can be fined for a single swear word used on live TV, which the Federal Communications Commission levied in a few cases.

The ruling threw out a lower court 2007 decision -- the 2nd U.S. Circuit Court of Appeals in New York -- which favored a Fox-led challenge, backed by other networks. The appeals court said the FCC's broadcast indecency policy was "arbitrary and capricious." Justice Scalia, in his decision, pointedly disagreed.

The case stemmed from the FCC's ruling against Fox for airing expletives uttered by Nicole Richie and Cher during separate live broadcasts of the Billboard Music Awards in 2002 and 2003.

Broadcasters have said FCC regulation of such fleeting profanities is unfair -- especially in a live broadcast, where performers' comments can be unscripted. They say "fleeting" expletives should be allowed.

What isn't clear is what this means for First Amendment free-speech rights. The Supreme Court suggested that a federal appeals court should rule on that issue.

In response the decision, Fox said, in a statement: "Fox is looking forward to the 2nd Circuit's consideration of the very important issues at stake in this case, and (we) are optimistic that we will ultimately prevail when the First Amendment issues are fully aired before the courts."