Top justices grapple with FCC filters on cursing, nudity
WASHINGTON -- In an entertaining hour-long episode, Supreme Court justices on Tuesday considered the federal government's power to regulate expletives and nudity on the airwaves.
From Steven Spielberg to Nicole Richie, from a nude scene in opera to excerpts from the musical Hair, the justices covered —or uncovered — it all. There were moments of outrage and levity, including when one of the lawyers arguing reminded the justices that some of the allegorical figures carved in stone above the bench are unclothed.
And when the lively session was over, there was no clear signal that a majority of the justices, unlike a lower appeals court, would find that federal regulators acted unconstitutionally in sanctioning certain words and nudity.
"All we are asking for, what the government is asking for," Chief Justice John Roberts said at one point, "is a few channels where you can say, 'I'm not going to … hear the "S" word, the "F" word.' They are not going to see nudity."
The case arises from Federal Communications Commission findings against expletives uttered by Cher and by Nicole Richie at Fox Television's Billboard Awards and a brief shot of a woman's buttocks on ABC's NYPD Blue.
Broadcasters say the FCC policy is unconstitutionally vague and violates free speech rights. Fox Television Stations, going further than ABC in its arguments, has asked the high court to abandon a longtime rule that allows more government regulation of broadcast, compared with cable TV, because of the scarcity of the airwaves and the pervasiveness of broadcast TV and radio.
There did not appear to be a majority for that position Tuesday. Further, several justices, including those who often favor broad speech rights, suggested by their comments that the federal government may have grounds to try to keep certain indecent material off the air.
"These are public airwaves," Justice Antonin Scalia observed, and "the government is entitled to insist upon a certain modicum of decency. I'm not sure it even has to relate to juveniles, to tell you the truth."
In appealing a ruling by the New York-based U.S. Court of Appeals for the 2nd Circuit, Solicitor General Donald Verrilli defended the FCC policy that bans even the one-time use of expletives that depict sexual or excretory activities. The current ban is broader than the one upheld in the 1978 case of FCC v. Pacifica Foundation, which permitted FCC sanction of a 12-minute monologue by comedian George Carlin repeating seven expletives.
Verrilli told the justices that when a broadcaster gets a license "for the free and exclusive use of a valuable part of the public domain" it comes with public obligations, one of which is to follow indecency restrictions imposed from 6 a.m. to 10 p.m., when children are most likely to be in the audience.
Justice Ruth Bader Ginsburg, seeming most sympathetic to the network challengers, noted that a key complaint is that the FCC policy is inconsistent, for example, by objecting to the nudity of a NYPD Blue episode but not in a TV airing of the movie Schindler's List.
"It's the appearance of arbitrariness," Ginsburg said, who also raised concerns that a nude scene in an opera or the musical Hair would be censored.
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