Nov. 4 (Bloomberg) -- While the rest of the country votes, the U.S. Supreme Court will consider curse words -- and maybe hear a few.

The justices today will scrutinize a Federal Communications Commission rule that would for the first time subject broadcasters to fines when they air ``fleeting expletives'' on live television. The FCC rule was a response to vulgar language used by entertainers Cher and Nicole Richie during awards shows on News Corp.'s Fox network.

The four major networks -- Fox, Walt Disney Co.'s ABC, CBS Corp.'s CBS and General Electric Co.'s NBC -- are battling the agency, seeking to avoid potential fines of $325,000 for each station that airs indecent material between 6 a.m. and 10 p.m.

The prospect of fines ``does jeopardize all live television,'' said Carter Phillips, a Washington lawyer who will argue for Fox today. ``It requires an enormous expenditure to put yourself in a position to bleep out everything that could potentially pop up on a network.''

Defenders of the FCC rule call it a necessary step to combat a sharp increase in profanity on broadcast television. The word ``fuck'' was uttered 1,147 times, though almost always bleeped out, on primetime broadcast TV last year, according to the Parents Television Council, which works to reduce televised sex, violence and profanity.

``Words that 10 years ago were barely mentioned are now commonplace today,'' said Tim Winter, the nonprofit group's president. ``Depictions of sexual themes are now far more graphic.''

Free-Speech Rights

A federal appeals court set aside the FCC rule last year, saying the agency hadn't justified its crackdown on isolated expletives. The court also suggested that, even with a better explanation, the 2006 rule might not pass muster under the Constitution's free-speech clause.

The Bush administration argued in its appeal that the FCC shouldn't be stuck with a ``one-free-expletive rule'' and instead should be allowed to impose fines when the situation warrants. The administration said the FCC didn't have to ``amass evidence that the broadcast of isolated expletives would be harmful to children.''

Although the broadcasters urged the Supreme Court not to hear the government's appeal, they now are asking the justices to issue a broad ruling. The networks are attacking a 1978 Supreme Court decision that gives the FCC more authority to regulate programming on broadcast stations than on cable or satellite.

Seven Dirty Words

That ruling, known as FCC v. Pacifica, said the agency could take action against a radio station for airing comedian George Carlin's ``Seven Dirty Words'' monologue during the afternoon. The court said FCC regulation was warranted because broadcast television and radio had a ``uniquely pervasive presence in the lives of all Americans'' and were ``uniquely accessible to children.''

The networks say those assumptions are no longer valid, given the spread of cable and satellite television and the Internet. NBC's Supreme Court lawyer, Miguel Estrada, contends that at most 5 percent of American households include children under 18 and rely solely on broadcast television for real-time programming.

``You have a policy that in effect brings down the permissible discourse for the entire country for the sake of less than 5 percent of households,'' Estrada said.

Estrada also said the V-chip technology can help parents shield children from inappropriate material.

Reasonable Condition

Winter counters that tougher FCC scrutiny is a reasonable condition for the broadcasters' use of the public airwaves to deliver their signal.

``It's like saying you're going to get a driver's license, but you refuse to abide by the speed limit,'' Winter said.

Broadcasters also fault the FCC for not being clear about the circumstances that might subject a broadcaster to penalties.

Cher's controversial remarks came in an acceptance speech during the 2002 Billboard Music Awards. Referring to critics of her work, she said, ``Fuck 'em. I still have a job and they don't.''

Richie, a star of the Fox show ``The Simple Life,'' used expletives as a presenter on the same show a year later. ``Have you ever tried to get cow shit out of a Prada purse?'' she said. ``It's not so fucking simple.''

The FCC and Chairman Kevin Martin concluded those programs, as well as two others, violated the agency's new indecency and profanity prohibitions. The FCC opted not to impose fines because the incidents took place before the agency had changed its policy on expletives.

Curses Allowed?

In addition to the legal questions, the justices also must decide another delicate issue: whether to allow curse words to be uttered in the normally staid court.

In the Pacifica case, then-Chief Justice Warren Burger began the argument with a subtle warning to the lawyers to exercise restraint, telling them ``we're familiar with the facts of the case.''

Unless current chief justice John Roberts makes a similar pronouncement today, the court's marble courtroom might echo with words rarely if ever heard before in that chamber.

``My instinct will be to use the words unless the court tells me not to,'' Phillips said last week. ``So far, they haven't told me one way or another.''

The case is Federal Communications Commission v. Fox, 07- 582.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: November 4, 2008 09:37 EST