BY DAVID G. SAVAGE | MCCLATCHY NEWSPAPERS
WASHINGTON — The Supreme Court Tuesday seemed reluctant to end the government’s historic policing of the broadcast airwaves and to strike down the “indecency” rules that guide prime-time TV shows.
Broadcasters use the public airwaves, and the “government can insist on a certain modicum of decency,” said Justice Antonin Scalia during oral arguments on the constitutionality of a ban on four-letter words and nudity.
“All we are asking for is for a few channels” where parents can be confident their children will not hear profanity or see sex scenes, said Chief Justice John G. Roberts Jr., who is a parent of two young children.
At issue before the high court was a plea from the broadcast industry urging the justices to strike down or sharply limit the government’s authority to police the airwaves. Since the 1930s, federal law has prohibited radio and TV broadcasters from putting on the airwaves material that is “obscene, indecent or profane.”
In the past decade, Bush administration appointees at the Federal Communications Commission launched a crackdown on indecency. Several TV networks, including Fox and ABC, were hit with heavy fines. Fox was fined for allowing celebrities, including singer Cher and U2’s Bono, to utter four-letter words during live awards programs. ABC was fined for showing a brief nude scene in an episode of “NYPD Blue.”
Lawyers for the networks urged the Supreme Court to throw out the fines and strike down the FCC’s indecency rules. They said federal policing of broadcast content was outdated and no longer warranted. They said most Americans receive entertainment and news though cable TV or the Internet, and these media have full First Amendment rights. Broadcasters deserve the same rights, they said.
They also argued that current FCC policy against indecency is vague and arbitrary and should be voided on those grounds. They noted, for example, that the broadcast of “Saving Private Ryan,” the World War II movie by Steven Spielberg, was permitted, even though it included plenty of four-letter words. At the same time, other broadcasters were fined for allowing a single four-letter word.
During Tuesday’s argument, neither approach seemed to win converts among the justices.
“People understand that context counts,” Roberts told one lawyer for the broadcasters. “Your argument is that they can’t take context into account.”
Justice Anthony M. Kennedy said he would not like to see a time when “celebrities and want-to-be celebrities” had a free speech right to utter profanities on television and radio.
At one point, Justice Elena Kagan agreed with the broadcasters that the rules on indecency seem arbitrary. “It seems no one can use dirty words, except Steven Spielberg,” she commented.
But she also voiced opposition to throwing out the rules entirely. Broadcasters have been given free use of the public airwaves. “It seems to be a good thing to have a safe haven” in prime-time broadcasts where standards of decency are enforced, she said.
