By Ariane de Vogue
In an hour-long argument, punctuated by lively exchanges, and even one blushing Justice, the Supreme Court grappled on Tuesday with the government's policy on indecency on the airwaves.
The case stems from celebrities-such as Cher and Nicole Richie-uttering swear words during live television in primetime, as well as an episode of ABC's show "NYPD Blue" that depicted partial nudity.
The Federal Communications Commission (FCC) - charged with regulating the public airwaves - found that the incidents violated its prohibitions against the broadcast of indecent material before 10 pm.
But lawyers for broadcasters such as Fox Television and ABC, Inc., argue that the FCC's policy is unconstitutionally vague and chills free speech. Facing daunting fines, the broadcasters argue that the government should no longer treat broadcast speech more restrictively than other media when it comes to the regulation of indecency over the airwaves.
The eight justices hearing the case (Justice Sonia Sotomayor was recused because she dealt with the issue as a lower court judge) showcased several aspects of the dilemma.
Justice Antonin Scalia most vocally defended the government's position that the policy serves an important interest in protecting children from indecency.
"It's a symbolic matter," he said. "The government is entitled to insist upon a certain modicum of decency."
Chief Justice John Roberts, the only justice with small children, suggested that the broadcast networks are a safe harbor for parents hoping to shield their children from indecency.
"What the government is asking for, is a few channels where you can say, 'I'm not going to-they are not going to hear the S -word, the F -word.'"
Justice Anthony Kennedy brought up a core issue, and a key part of the broadcasters argument, regarding the pervasiveness of cable and the Internet.
Kennedy asked Solicitor General Donald B. Verrilli, Jr, "But you're saying that there's still a value, an importance, in having a higher standard..for broadcast media. Why is that , when there are so many other options?"
Justice Ruth Bader Ginsburg argued that the FCC's policy problem seemed to be "an appearance of arbitrariness about how the FCC is defining indecency in concrete situations."
She pointed out that the government allowed the use of expletives in the broadcast of Steven Spielberg's war movie, "Saving Private Ryan."
Justice Elena Kagan said, "the way this policy seems to work, it's like nobody can use dirty words or nudity except for Steven Spielberg."
The broadcasters urge the Court to overturn 34-year-old precedent in a case called FCC v. Pacifica Foundation. At issue in that case was a broadcast of comedian George Carlin's "Filthy Words" monologue which was aired on a radio broadcast in the middle of the afternoon. After complaints from the public, the FCC ruled that the broadcast was indecent and could be subject to sanctions. The Supreme Court rejected a First Amendment challenge to the FCC's determination finding "of all forms of communication, broadcasting has the most limited First Amendment protection."
Carter G. Phillips, arguing on behalf of Fox Television, said that the FCC's policies, which have been expanded since the Pacifica decision, have caused "thousands and thousands" of complaints so that "the whole system has come to a screeching halt because of the difficulty of trying to resolve these issues."
One of the most humorous exchanges during the argument came when Seth Waxman, representing ABC, noted that the FCC has a pending complaint about an opening episode of the last Olympics, which included a naked statute similar to those actually depicted in the courtroom walls.
The justices began to look at the marble friezes in the courtroom depicting statues of historical figures.
"Right over here, Justice Scalia," Waxman said pointing to the wall, "there's a bare buttock there, and there's a bare buttock here. ..frankly I had never focused on it before"
"Me neither," said a laughing, blushing Scalia.