Supreme Court weighs policing curse words on TV

The justices of the U.S. Supreme Court sit for their official photograph Oct. 8, 2010, at the Supreme Court in Washington. From left to right, front row: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy and Associate Justice Ruth Bader Ginsburg. From left to right, back row: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr. and Associate Justice Elena Kagan. AFP/Getty Images

Updated at 2:36 p.m. ET

WASHINGTON - The Supreme Court debated whether policing curse words and nudity on broadcast television makes sense in the cable era, with one justice suggesting it's a moot point at a time when broadcast TV seems headed the way of "vinyl records and 8-track tapes."

The justices engaged in colorful give-and-take Tuesday with lawyers for the government and television networks over government regulation of the airwaves during hours when children are likely to be watching.

Some justices said they were troubled by inconsistent standards that allowed certain words and displays in some contexts, but not in others.

One example frequently cited by the networks was the Federal Communications Commission's decision not to punish ABC's airing of "Saving Private Ryan," with its strong language, while objecting to the same words when uttered by celebrities in live awards show programming.

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Justice Elena Kagan said the FCC policy was, "Nobody can use dirty words or nudity except Steven Spielberg," director of the World War II movie. Other justices seemed more open to maintaining the current rules because they allow parents to put their children in front of the television without having to worry they will be bombarded by vulgarity.

Chief Justice John Roberts, the only member of the court with young children, hammered away at that point, saying he wondered why broadcasters would oppose regulation of a few channels so that parents can know that children "are not going to hear the S-word, the F-word" or see nudity.

But at least one justice, Samuel Alito, talked about how rapidly technological change has effectively consigned vinyl records and 8-tracks to the scrap heap, suggesting that in a rapidly changing universe, time will take care of the dispute.

The First Amendment case pits the Obama administration against the nation's television networks. The material at issue includes the isolated use of expletives as well as fines against broadcasters who showed a woman's nude buttocks on a 2003 episode of ABC's "NYPD Blue."

The broadcasters want the court to overturn a 1978 decision that upheld the Federal Communications Commission's authority to regulate both radio and television content, at least during the hours when children are likely to be watching or listening. That period includes the prime-time hours before 10 p.m.

At the very least, the networks say the FCC's current policy is too hard to figure out, penalizing the use of particular curse words in some instances, but not in others.

The administration said that even with the explosion of entertainment options, broadcast programming remains dominant. It also needs to be kept as a dependable "safe haven" of milder programming, the administration said.

Solicitor General Donald Verrilli Jr. said that if the court were to overrule its 33-year-old decision, "the risk of a race to the bottom is real."

But Carter Phillips, representing the networks in connection with the awards shows, said that little would change because broadcasters would remain sensitive to advertisers and viewers who don't want the airwaves filled with dirty words and nudity.

Nearly nine out of 10 households subscribe to cable or satellite television and viewers can switch between broadcast and other channels by pushing a button on their remote controls. "People have really lost track of which stations are broadcast stations," said Paul Smith, a partner with the Jenner and Block law firm who has argued First Amendment cases at the Supreme Court.

But supporters of regulation said the media companies that own television networks also have movie studios, cable channels and other outlets where they are free to run whatever they wish.

Even on television, the rules only apply between 6 a.m. and 10 p.m., noted Tim Winter, president of the pro-regulation Parents Television Council. "Radio and television broadcasters already have the ability to be as indecent as they want after 10 p.m."

The FCC policy under attack flowed from the 1978 Pacifica decision, which upheld the FCC's reprimand of a New York radio station for airing a George Carlin monologue containing a 12-minute string of expletives in the middle of the afternoon.

For many years, the FCC did not take action against broadcasters for one-time uses of curse words. But, following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its longstanding policy after it concluded that a one-free-expletive rule did not make sense in the context of keeping the airwaves free of indecency when children are likely to be watching television.

The 2nd U.S. Circuit Court of Appeals in New York declared the FCC policy unconstitutionally vague.

The Billboard Music Awards aired on Fox in both 2002 and 2003. Cher used the F-word the first year and reality TV personality Nicole Richie uttered the F-word and S-word a year later. The FCC did not issue a fine in either case, but said the broadcasts violated its policy.

The "NYPD Blue" episode led to fines only for stations in the Central and Mountain time zones, where the show aired at 9 p.m., a more child-friendly hour than the show's 10 p.m. time slot in the East.

Justice Sonia Sotomayor is not taking part in the case because she served on the appeals court during its consideration of some of the issues involved.

The case is FCC v. Fox Television Stations, 10-1293.

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