The high court heard oral arguments in what has been described as the most important broadcast indecency case in more than three decades.
Afterward, supporters of the federal government's authority to regulate indecency on broadcast television and radio said they were encouraged at prospects the justices would reverse a lower-court ruling that supported the networks.
The arguments came in a case, FCC v. Fox Television Stations, that has bounced up and down the federal court system for years. In the latest development, the high court is reviewing an opinion from the Second Circuit Court of Appeals in New York that overturned federal indecency rulings against prime-time telecasts that included nudity and profanity, as well as the policy on which they were based. The case involves penalties by the Federal Communications Commission against Fox stations for telecasts of the 2002 and 2003 Billboard Music Awards programs in which various obscene words were used briefly and against ABC stations for showing female nudity during an episode of "NYPD Blue."
The FCC's indecency policy applies between 6 a.m. and 10 p.m., so networks do not have any restrictions on broadcasting offensive material during the other eight hours of a day. Backers of the federal government's indecency policy have said the Supreme Court's failure to uphold the rules would unleash a flood of graphic nudity and harsh profanity on broadcast television in prime time.
In briefs for the Supreme Court, Fox, ABC, CBS and NBC called for the justices to overturn one of their own rulings -- the 1978 FCC v. Pacifica opinion, which said the government has the authority to regulate indecent language on the airwaves. That case involved comedian George Carlin's "seven dirty words" routine.
Lawyers for Fox and ABC told the justices Jan. 10 that the FCC's policy on profanity and nudity is arbitrary, as well as outdated in a regime in which cable networks are not regulated by the FCC. The federal law on which the FCC's indecency policy is based applies only to broadcast television and radio. Carter Phillips, Fox's lawyer, argued the networks would regulate themselves.
The FCC "enforces the indecency ban in a starkly inconsistent manner," said Seth Waxman, ABC's lawyer and a former U.S. solicitor general under President Clinton.
Associate Justice Ruth Bader Ginsburg pointed to inconsistency as what she understood to be the primary problem while questioning Solicitor General Donald Verrilli, who argued for the FCC.
"he major objection is that one cannot tell what's indecent and what isn't; that it's FCC, the censor, that's saying 'Private Ryan' is OK, 'Schindler's List' is OK, but 'NYPD Blue' is not," Ginsburg said. "You can't do it in terms of time because the 'NYPD' was seven seconds and another broadcast, 'Catch-22,' was 40 seconds."
Verrilli acknowledged "there is not perfect clarity in this rule. It's a context-based rule."
He said the Supreme Court suggested in the 1978 Pacifica opinion the "context-based rule may well be what the Constitution requires here, and that's going to result in ... something less than absolute precision."
Phillips asked the justices, "How is it permissible to allow the FCC to regulate the broadcast networks on standards that are fundamentally different than cable, the Internet and every other medium that exists?"
Chief Justice John Roberts told Phillips the "proliferation of other media" seems to work against his argument.
"People who want to watch broadcasts where these words or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that. ... hat the government is asking for is a few channels where you can say ... they are not going to hear the S-word, the F-word they are not going to see nudity," Roberts said.
Verrilli, the solicitor general, told the justices, "hatever may be the case with respect to the ability of a viewer to differentiate whether something is a broadcast channel or a cable channel, the reality is that broadcasters are in a different position by virtue of the fact that they have a license from the government that comes with this enforceable public obligation that allows the government to create this safe haven, and that puts them in a different position."
Associate Justice Antonin Scalia said if "these are public airwaves, the government is entitled to insist upon a certain modicum of decency."
Questioning Phillips, Associate Justice Samuel Alito asked, "But if we rule in your favor on First Amendment grounds, what will people who watch Fox be seeing between 6 a.m. and 10 p.m.? Are they going to be seeing a lot of people parading around in the nude and a stream of expletives?"
Phillips said, "Not under the guidelines that Fox has used consistently from 10 p.m. until 6 a.m. and candidly that all of the other networks follow. The truth is the advertisers and the audiences that have to be responded to by the networks insist on some measure of restraint...."
Studies demonstrate, however, the content of prime-time broadcast television has coarsened in recent years. The Parents Television Council (PTC) filed a brief supporting the FCC policy and quoted its own research showing a 69 percent increase in profanity in prime-time programming from 2005 to 2010. If the high court strikes down the FCC's policy, television indecency will only increase, the PTC said.
Despite the popularity of cable television, broadcast TV has 90 of the top 100 primetime shows on TV, the PTC said in citing data from BusinessWire.com. The percentage of Americans who rely solely on broadcast television -- and therefore don't subscribe to cable or satellite -- has tripled since 2003 to 15 percent of the public, according to the PTC.
After the oral arguments, long-time pro-decency leader Patrick Trueman said he was "very hopeful."
"t sure seemed like we would have to say that the court is not willing to overturn the Pacifica case, which earlier upheld the statute on indecency," said Trueman, president of Morality in Media, outside the court building. "And I think that the arguments of the networks were weak, and that was pointed out so even by Justice Breyer and certainly by Justices Scalia and Alito. I don't think they're going to win" with the justices.
Craig Parshall, general counsel of the National Religious Broadcasters, also was encouraged, saying in a written statement, "It was clear that several of the justices see the practical need for FCC guidelines restricting indecent programming and that the arguments of the broadcast networks that seek to strike down existing guidelines missed the point: restrictions on profanity and explicit sexuality can be fully compatible with a sensible view of the First Amendment."
The FCC and its supporters probably are helped by Associate Justice Sonia Sotomayor's non-participation in the case. She recused herself because she served on the Second Circuit during part of the time the case was being considered by that court.
They may not be helped by Associate Justice Clarence Thomas, however. He has expressed doubts about the Pacifica decision.
The court battle began after the FCC announced a new policy in 2004 in which it ruled against Fox for the use of "fleeting expletives." Previously, an indecent word had to be used repeatedly for the FCC to find a broadcaster in violation. If it allowed the singular use of expletives, widespread usage of those words on TV would follow, the FCC said in defending its revised policy.
The opinion in the case is expected before the high court adjourns in the summer.
Tom Strode is Washington bureau chief for Baptist Press. With reporting by Michael Foust, associate editor of Baptist Press.
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