WASHINGTON The Supreme Court on Tuesday weighed whether the government’s current policy of sanctioning broadcasters for foul language and brief nudity was too vague to pass constitutional muster, but some justices appeared reluctant to issue a sweeping decision that would strip the FCC of almost all of its authority to police indecent content.
It was not clear which way the justices would rule, after hearing an hour of oral arguments in sometimes colorful exchanges, in which justices remarked on the penchant for today’s celebrities to drop f-bombs and some were apparently intrigued that the high court’s chambers contained relief artwork with its own portrayals of nudity.
The court is expected to make its ruling sometime before June, and there are serious stakes at play: After a long slog challenging the FCC’s Bush-era crackdown on indecent content, the networks are asking the justices to overturn the court’s landmark 1978 decision in FCC vs. Pacifica. That year the court ruled that the government could sanction stations for airing indecent material, in that case a radio broadcast of George Carlin’s famous “seven dirty words” monologue during the middle of the day.
Broadcasters argue that one of the rationales for the decision — that networks should be subject to scrutiny because they are “uniquely pervasive” in American homes — no longer holds true with the growth of cable, satellite and the Internet.
“The time has come to treat broadcast television on the same level playing field as other media,” said attorney Carter Phillips, who represented Fox.
Yet some justices wondered whether such a ruling was necessary.
“That cuts both ways,” said Chief Justice John Roberts. “People who want to watch broadcasts … where these words are used, where there is nudity, there are 800 channels where they can go for that. All we are asking for, what the government is asking for, is a few channels where you can say, ‘I’m not going to … hear the s-word, the f-word.”