Several Supreme Court justices hearing arguments in a case that may redefine television indecency standards indicated they are hesitant to broadly loosen obscenity rules under the banner of protecting the First Amendment.
The questioning today signal the case, which originated when the Federal Communications Commission cited TV networks for airing fleeting instances of naughty language, may be resolved on more narrow, procedural grounds. Television networks say the FCC is impermissibly expanding its power to police the airwaves in the so-called “fleeting obscenity” case.
Traditionally, the FCC has labeled curses that are repeated or appeal to sexual or prurient interests as indecency. The case at hand expanded the agency’s interpretation to cover passing exclamations.
The arguments today centered on the government’s appeal of a lower court order that went against the FCC. That appeals court order set aside the FCC’s decision holding that Cher and Nicole Richie’s profane comments on Fox’s airing of the 2002 and 2003 Billboard Music Awards shows amounted to indecency.
Traditionally the FCC ignored unscripted comments made on live shows, but in the face of a congressional uproar over U2 singer Bono’s use of the F-word on a Golden Globe awards show on NBC, the FCC decided to get tougher.
The agency got into the action later, citing Fox stations after Nicole Ritchie uttered a profanity during the broadcast of the Billboard awards. The agency didn’t fine Fox stations, but said it viewed the comments as violating its indecency rules.
Chief Justice John Roberts and Justice Anthony Scalia today both questioned the wisdom and impact of removing indecency enforcement over broadcast TV. Justice David Souter questioned whether an appellate court decision overturning the FCC’s indecency enforcement gave the agency enough of an opportunity to explain its new policy.
All three questioned whether there were other choices for the court besides a broad First Amendment ruling with Justice Scalia expressing the harshest criticism of the networks’ argument.
Carter Phillips, an attorney representing Fox, today suggested that community standards that govern whether a curse is indecent might be loosening, thus providing the court a reason to keep the FCC from being more strict in indecency enforcement.
Justice Scalia shot down that line of reasoning, suggesting there might be a reason for the more lax public attitudes.
“Do you think any of your clients had anything to do with that?” said the justice.
Although Cher and Ms. Richie used the S-word and the F-word during the programs, the words were never mentioned in today’s hour-long court argument. Instead both justices and attorneys referred to them indirectly.
The FCC, under Republican-appointed chairman Kevin Martin, used the Billboard decision to signal that it would be looking more closely at fleeting expletives during live programming, which the agency for 30 years had ignored.
The 2nd Circuit Court of Appeals overturned the FCC’s action, questioning whether the agency adequately justified the change or could ever adequately justify it.
Fox and other broadcasters have been hoping to use the case to broadly attack the FCC’s indecency regulation. In court papers they questioned the impact and need for the FCC regulation when viewers can easily watch more offensive content on cable, satellite and the Internet.
Chief Justice Roberts directly questioned the need for First Amendment ruling, saying if broadcasters wanted one, they should have argued those issues in the appellate court, rather than the procedural issues they carried the day on.
Justice Souter, meanwhile, questioned whether the FCC had shown the specific facts in this case amounted to indecent content.
Several justices questioned whether use of the S-word and the F-word to describe activities that weren’t sexual- or bodily-function references constituted indecency.
Solicitor General Gregory G. Garre defended the FCC.
“We think the F-word and the S-word are patently offensive,” he said.
(Editor: Baumann)