WASHINGTON — The U.S. Supreme Court on Tuesday will weigh the government's power to regulate profanity and nudity on broadcast television in a challenge to a long-standing policy that goes back to comedian George Carlin's "Seven Filthy Words" monologue.
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With their free speech rights at issue, the major television networks are contesting the Federal Communications Commission's indecency policy that was upheld in a 1978 dispute over Carlin's act. The networks' challenge involved more recent events.
One was a 2002 awards show during which singer Cher blurted out an expletive. Another was a 2003 show when actress Nicole Ritchie used two expletives. A third was a seven-second shot of a woman's nude buttocks on a 2003 "NYPD Blue" episode on Walt Disney Co's ABC that led to $1.21 million in fines.
The Supreme Court will hear arguments on whether the FCC's indecency policy should be struck down as unconstitutionally vague and for violating free-speech rights under the Constitution's First Amendment.
Central to the case is the FCC's right to regulate broadcast speech differently and more restrictively than other media in an effort to protect children from indecent content, even brief nudity or a single expletive blurted out on a live show.
In the Cher and Nicole Ritchie outbursts, the FCC ruled in 2006 that News Corp's Fox violated the indecency policy. Government lawyers said the policy covered so-called "fleeting expletives" such as the "F-word" and the "S-word" that denote "sexual or excretory activities," respectively.
The FCC ruled against the network in the "NYPD Blue" case, but a U.S. appeals court threw out the fines in striking down the policy.
The Obama administration has defended the FCC's policy as constitutional, arguing regulation of broadcast indecency does not violate the First Amendment, is needed and should be upheld.
The FCC launched an indecency crackdown after pop star Janet Jackson briefly exposed her bare breast during the 2004 broadcast of the halftime show for the Super Bowl football game, drawing half a million complaints.
The networks want the Supreme Court to overturn the 1978 ruling that helped form the legal basis for the FCC policy.
Carter Phillips, an attorney for the Fox television network, said in a written brief that the media landscape has changed dramatically over the past 30 years, with broadcasting no longer uniquely pervasive nor uniquely accessible to children.
"For more than 30 years, broadcasting alone among all mass media has been a second-class citizen. Only broadcasting is subject to content-based censorship by the federal government," he said.
Solicitor General Donald Verrilli, the administration's top courtroom lawyer, disagreed and said broadcast television retains a dominant position on the media landscape.
"The founding era for broadcast communication was the 1920s. Since that time, Congress and the commission have made indecency regulation one of broadcasting's defining features. That longstanding judgment is entitled to this court's respect," he said.
The FCC can slap fines of $325,000 on each station that airs indecent material, including images and words, between 6 a.m. and 10 p.m.
Seth Waxman, the attorney who will argue for ABC, said the FCC has inconsistently enforced its policy.
He said many ABC stations refused to air the World War Two movie "Saving Private Ryan" because it contained expletives and out of fear the FCC might deem it indecent. The FCC later decided the movie was not covered by its indecency policy.
'Unpredictable' speech regulations
Mark Rienzi, a constitutional law professor at Catholic University of America, said the FCC's policy of indecency regulation has been inconsistent over the years.
"They will have a difficult time explaining to the court why they should be allowed to subject one group of speakers - broadcasters - to an unpredictable set of speech regulations that are not imposed on speakers who convey their messages over cable, satellite, the Internet or print media," he said.
The FCC policy applies only to broadcast television and radio. Neither cable nor satellite channels are subject to FCC content regulation.
Waxman said the V-chip and similar technologies now provide parents with powerful tools to block broadcasts they consider inappropriate for their children.
The Supreme Court arguments mark the second time in recent years that the justices will consider the FCC's policy.
The court ruled 5-4 in 2009 on narrower grounds that the policy was a rational and legally permissible use of the FCC's administrative powers.
But several justices, including at least one in the majority and one in dissent, expressed concerns that the policy might violate constitutional free-speech protections.
The Parents Television Council, a Los Angeles-based group that has strongly supported the FCC's stepped-up indecency enforcement efforts, urged the court to uphold the policy.
"This case will determine whether the indecency statute will be reduced to a polite fiction that can be safely ignored at the expense of American children and families," said Tim Winter, the group's president.
The Supreme Court case is FCC v. Fox Television Stations and FCC v. ABC Inc, No. 10-1293.
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