By a 5-4 margin, the U.S. Supreme Court on Tuesday upheld a shift in the FCC’s policy on indecency that holds broadcasters liable for utterances of “fleeting expletives” on radio or television. The high court, however, left open the question of the FCC’s constitutional authority to regulate indecent speech on the nation’s airwaves. Handing the FCC a key legal victory, the justices overturned a 2007 ruling by the Second Circuit Court of Appeals, which, in response to petitions filed by the major broadcast television networks, had concluded that the FCC failed to “articulate a reasoned basis” for holding broadcasters responsible for off-the-cuff profanity that is not intended to convey sexual or excretory meaning. Responding to viewer complaints about live awards shows in 2002 and in 2003 that were punctuated by use of the “f-word” and similar swear words by Cher, Paris Hilton and Nicole Richie, the FCC determined in 2004 that broadcasters could be held liable for fines of up to $325,000 for “fleeting” utterances of words that are deemed to be indecent under the FCC’s rules. (While finding the NBC and Fox networks liable for these utterances, the FCC declined at the time to issue monetary fines against the networks and their affiliates.) Following the broadcasters’ victory at the Second Circuit, the FCC convinced the Supreme Court to take up the case. In an opinion penned by Justice Antonin Scalia, the majority found that the FCC “could reasonably conclude that the pervasiveness of foul language, and the coarsening of public entertainment in other media such as cable, justifies more stringent regulation of broadcast programs.” However, while Scalia emphasized that the FCC properly fulfilled its congressional mandate to police the nation’s airwaves in formulating its policy on fleeting expletives, Scalia and other justices on the high court hinted that the FCC’s regulatory regime on broadcast indecency could be challenged successfully on constitutional grounds. Despite agreeing with the majority on the reasonableness of the FCC’s policy, Justice Clarence Thomas termed the FCC’s underlying authority to regulate broadcast indecency as “a deep intrusion into the First Amendment rights of broadcasters.” Similarly, dissenting justice Ruth Bader Ginsburg wrote: “there is no way to hide the long shadow the First Amendment casts over what the Commission has done.” While terming the court’s decision as “extremely disappointing,” a spokesman for the Media Access Project voiced hope “that the FCC’s restrictive policies will ultimately be declared unconstitutional.”