For the first time in 30 years, the Supreme Court took up the issue of indecency on television and radio broadcasts Tuesday, and its leading conservatives made clear they would like to uphold an official crackdown on the use of expletives during daytime and early evening hours.
U.S. Solicitor General Gregory G. Garre said the strict regulation of broadcast TV preserved it as a “safety zone” for families with children, particularly in an era of unrestrained free-speech rules on the Internet and on cable and satellite TV. “Broadcast TV is the one place where Americans can turn on the TV at 8 o’clock and . . . not expected to be bombarded with indecent language,” he said.
He was defending a 4-year-old policy of the Federal Communication Commission to impose heavy fines on broadcasters who put on the air even a single expletive. He referred to the banned language as “the F-word” and “the S-word.”
“The F-word is one of the most graphic, explicit and vulgar words in the English language for sexual activity,” he said. Broadcasters can be fined more than $325,000 for a single utterance of the F-word, even if it is blurted out by a guest on a live program.
Last year, the TV networks won a ruling from the U.S. appeals court in New York that blocked the FCC policy from being enforced on the grounds it was arbitrary and possibly a 1st Amendment violation.
But Chief Justice John G. Roberts Jr. and Justice Antonin Scalia dominated Tuesday’s argument and strongly supported the FCC.
Roberts, who has two young children, referred to the use of the F-word by rock singer Bono at the Golden Globe Awards and Cher at the Billboard Music Awards. “Here is an awards show. Here is a celebrity. I want to listen to what they are going to say because I listen to their music,” the chief justice said, portraying himself as the parent with “impressionable children” in the audience. “And he comes out with that,” he said, referring to an expletive.
Scalia said he understood that foul words would be heard at a football or baseball game. “You don’t have to have them presented as something that is normal in polite company, which is what happens when it comes out in television shows,” he told a lawyer for the broadcast networks.
Scalia blamed television for “coarsening” public discourse. “I am not persuaded by the argument that people are more accustomed to hearing these words than they were in the past,” he added.
Still, the outcome was hard to forecast because several members of the court, including Justices Samuel A. Alito Jr. and Anthony M. Kennedy, said little or nothing during the oral argument.
Representing the Fox TV network, Washington lawyer Carter G. Phillips urged the court to think twice before allowing the FCC policy to go into effect. “At the end of the day, you are regulating the content of the speech,” he said.
The FCC has not explained its abrupt shift in the policy, he said, and it has been inconsistent in applying it. He also said broadcasters would be wary of airing live sports programs if an overheard expletive could result in a huge fine.
Despite earlier comments that he would be explicit, Phillips did not use the disputed words in the court on Tuesday.
In contrast to cable companies, traditional over-the-air broadcasters remain subject to regulation because they use the public airways. In their legal briefs, the broadcasters urged the court to rethink this doctrine.
But during Tuesday’s argument, only Justice Ruth Bader Ginsburg suggested the court delve into the 1st Amendment issues that underlay this dispute.
It is “the big elephant in the room,” she said.
One bright spot for the broadcasters was Justice John Paul Stevens. He wrote a 1978 decision upholding the FCC’s indecency restrictions, but he said Tuesday that he was not convinced that every use of the forbidden words was offensive. Cher, for example, said on the award show that she had outlasted her critics. “So, F . . . ‘em,” she said.
What if a “particular remark was really hilarious, very funny? Would that cause the FCC to think twice about imposing a fine?” he asked Garre.
The solicitor general was unswayed. When “celebrities use particularly graphic, vulgar, explicit, indecent language as part of the comedic routine,” he said, there is “potentially greater harmful impact on children.”
Later, when Garre said the S-word must be banned because it refers to excretion, Stevens probed further. “Do you think the use of the word ‘dung’ would be indecent?” he asked. Probably not, Garre replied, because it “wouldn’t be patently offensive under community standards for broadcasting.”
The court could rule narrowly by focusing only on whether the FCC’s change in policy is arbitrary. Or it could delve into the 1st Amendment standard for the broadcasting industry.
Fox TV took the lead in challenging the FCC because the network had broadcast several of the award programs.