WASHINGTON — The hushed and hallowed halls of the U.S. Supreme Court are not a place one usually goes to hear discussions of nudity, sex scenes or four-letter words.
But on Tuesday, the justices considered whether such coarse and edgy fare is fit for the public airwaves, at least on prime-time television. The answer, it appears, is no.
The justices said they wanted to preserve broadcast TV as a “safe haven” for children and families.
“All we are asking for, what the government is asking for, is a few channels where you … are not going to hear the ‘S-word,’ the ‘F-word.’ (Children) are not going to see nudity,” said Chief Justice John G. Roberts Jr., the father of two young children. “There are 800 channels where they can go for that.”
His comments came amid arguments in the latest case to challenge government policing of the airwaves, policies that date to the 1930s. Thanks to cable and satellite TV and the Internet, viewers can easily see almost anything.
Lawyers for the major broadcast networks went before the high court Tuesday, citing the First Amendment to argue that they, too, deserve to be freed from the federal “indecency” police.
They apparently went to the wrong place. The justices took turns saying how they valued broadcast television as a last refuge for old-fashioned standards of decorum and civility.
“These are public airwaves. The government is entitled to insist upon a certain modicum of decency,” said Justice Antonin Scalia, who has nine grown children. He compared broadcast offerings with “the vulgarity of cable.”
At issue was whether the court should strike down or sharply limit the indecency rules adopted during the Bush administration by the Federal Communications Commission.
In recent years, the court under Roberts has regularly ruled in favor of free-speech claims. The broadcasters had been optimistic that their turn had come. But during arguments, none of the justices voiced support for making a major change in the law. And most appeared ready to uphold heavy fines against broadcasters who ran afoul of FCC rules.
“We have had this for decades and decades that broadcast is treated differently,” said Justice Elena Kagan. “It seems to work, and it seems to be a good thing that there is some safe haven.”
Justice Anthony M. Kennedy said he would not relish a time when “every celebrity and want-to-be celebrity … can feel free to use one of these words” when interviewed on TV. It would be “inevitable” that the airwaves would become filled with such talk if the indecency rules were tossed out, he said.
Under the FCC rules against so-called fleeting expletives, Fox TV faced potential fines when celebrities, including Cher, Bono and Nicole Richie, used the “F-word” on awards programs that were broadcast live. This “seems to be naturally part of their vocabulary,” observed Justice Stephen Breyer.
Meanwhile, ABC was fined for an episode of its police drama “NYPD Blue” that featured a brief scene of the back of a woman entering a shower.
The broadcasters challenged the rules in court, calling them “hopelessly out of date and fundamentally unfair.”
They also argued that the rules were “arbitrary” in how they were enforced. For example, the FCC allowed the broadcast of “Saving Private Ryan,” a World War II movie by Steven Spielberg that includes scenes of soldiers shouting and cursing as they fight on the beaches of Normandy.
Kagan agreed the rules seemed a bit arbitrary. “It’s like nobody can use dirty words or nudity except for Steven Spielberg,” she said.
U.S. Solicitor Gen. Donald Verrilli Jr., defending the FCC, acknowledged that there is “not perfect clarity” in the rules. But broadcasters are on notice that nudity or expletives should not be broadcast during daytime and early-evening hours.
The chief justice also came to his defense. “People understand that context counts,” he told a lawyer for the broadcasters. A soldier’s cursing in a battle scene might well be permitted, whereas a frivolous expletive during an awards broadcast might cross the line, he said.
The argument had many bad moments for the broadcasters. At one point, Justice Samuel A. Alito Jr. commented that broadcast TV was “living on borrowed time.” It is “going the way of vinyl records and eight-track tapes,” he said.
At another point, ABC attorney Seth Waxman, a veteran of many Supreme Court arguments, said a TV movie on the Olympics faced questions because it included statues such as those “here in this courtroom that had bare breasts and buttocks.”
When Scalia glanced up, Waxman pointed to sculpted scenes along the ceiling. “Frankly, I had never focused on it before,” Waxman said.
“Me neither!” Scalia said.
The broadcasters have been battling the FCC for decades. Unlike cable TV companies, which own their own networks into homes, broadcasters use public airwaves and are thus subject to regulation.
In its most famous decision on the issue, the high court in 1978 upheld the FCC’s indecency rules in a case involving comedian George Carlin and his “seven dirty words” monologue.
In later decades, Howard Stern and other so-called shock jocks engaged in famous fights with the FCC. Stern’s battles helped push him to move to unregulated satellite radio.
But parental-rights groups have been fighting back, urging the government to hold the line on what is acceptable on broadcast radio and TV.
The high court’s decision in FCC vs. Fox TV will come in several months.