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Will Supreme Court decide FCC indecency rules going the way of rabbit ears?

By Linda P. Campbell, McClatchy Newspapers –

The late, profane iconoclast George Carlin must have been rolling in his grave Tuesday — with laughter at the irony and potential.

Here was Chief Justice John Roberts, the good Republican, endorsing the government’s ability to regulate corporations, broadcasters anyway.

There was attorney Seth Waxman for ABC Inc. directing all eyeballs to the friezes high above the court chambers and talking about “a bare buttock there” and “a bare buttock here.”

Hanging over the arguments was the titillating prospect of overturning the 1978 Pacifica decision that immortalized Carlin’s “Filthy Words” monologue as an appendix to Justice John Paul Stevens’ opinion for the court. In FCC v. Pacifica Foundation, the court said the Federal Communications Commission could punish broadcasters for airing “indecency” between 6 a.m. and 10 p.m., when children were likely to be in the audience. Now, Fox Television Stations wants to let the industry police itself.

Judging from the transcript, Tuesday’s arguments would have made for snappy TV, entertaining without any need of a laugh track.

But, darn, those justices still don’t want even a C-SPAN audience.

This is the second time in recent years that the court has weighed the constitutionality of the FCC punishing bad language and nudity on broadcast TV. Fox is involved because of awards shows on which Cher and Nicole Richie spouted naughties. ABC is challenging a fine over an “NYPD Blue” episode in which a young boy sees a woman’s backside. They’ve been fighting over this for almost a decade.

You could tell Roberts has school-age children.

“People who want to watch broadcasts … or expose their children to broadcasts where these words are used, where there is nudity, there are 800 channels where they can go for that,” he told Carter Phillips, Fox’s attorney. “All we are asking for,” he started, then caught himself, “what the government is asking for, is a few channels where you can say … they are not going to hear the s-word, the f-word. They are not going to see nudity.”

Justice Antonin Scalia, who ordinarily opposes government regulating speech when it looks like money (as in campaign contributions), put himself squarely on the side of government regulating vulgar speech.

“Sign me up as supporting Justice Kennedy’s notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this court,” Scalia said.

The argument for broadcast regulation is that the airwaves belong to the public and that certain restrictions come with the license to use them. Broadcasters counter that, with the proliferation of other TV options, most people can’t tell what’s broadcast and what isn’t. The same content limits don’t cover cable, satellite or the Internet.

Justice Ruth Bader Ginsburg seemed to embrace the argument that the FCC enforces the rules inconsistently, punishing “NYPD Blue” but not nudity in the movie “Schindler’s List,” for instance, or allowing profanity on TV showings of “Saving Private Ryan.”

Justice Elena Kagan quipped, “It’s like nobody can use dirty words or nudity except for Steven Spielberg and that there’s a lot of room here for FCC enforcement on the basis of what speech they think is kind of nice and proper and good.”

Solicitor General Donald Verrilli, arguing for the Obama administration, conceded that the rules weren’t a model of clarity but said context matters in determining punishable indecency.

Shades of the late Justice Potter Stewart’s “I know it when I see it” about hard-core pornography.

What is government’s role in drawing lines for acceptable public behavior? Does that change as society grows coarser and less shockable?

Justice Anthony Kennedy fretted about creating perverse incentives: “Isn’t the inevitable consequence … that every celebrity or want-to-be celebrity that is interviewed can feel free to use one of these words?”

But Phillips said, “The truth is the advertisers and the audiences that have to be responded to by the networks insist on some measure of restraint.”

Justice Samuel Alito suggested that the problem could solve itself.

“Broadcast TV is living on borrowed time. It is not going to be long before it goes the way of vinyl records and 8-track tapes,” he said. “I’m sure your clients will continue to make billions of dollars on their programs which are transmitted by cable and by satellite and by Internet. But to the extent they are making money from people who are using rabbit ears, that is disappearing.”

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