In the court's first major broadcast indecency case in 30 years, the Supreme court remained locked in hour-long discussions Tuesday over the dispute between the broadcast networks and the Federal Communications Commission regarding the use of dirty words on television.
No breakthrough was, however, achieved about the modus operandi of banning the use of profanity on television.
The FCC's policy, adopted in 2004, holds that even a one-time use of profanity on live television is not acceptable as some words always evoke sexual or excretory images. The so-called “fleeting expletives,” which begin with the letters "F" and "S", were not deemed to be indecent prior to that date.
The FCC singled out use of the offensive words by Bono, Cher, and Nicole Richie during awards programs aired in 2002 and 2003; following which Fox Television Stations, owned by Rupert Murdoch's News Corp., and other networks challenged the policy.
In each of the cases mentioned, a variation of the f-word was used. Bono's comment was that an award is "really f---ing brilliant". Cher had said, "F--- 'em," to her critics.
A federal appeals court in New York refused to recognize the ban, alleging the FCC didn't provide enough explanation. The government had then appealed to the Supreme Court. The appeals court also held, though it did not rule, that the new policy is probably unconstitutional.
It was hard to gauge the outcome of the proceedings as three justices — Samuel Alito, Anthony Kennedy and Clarence Thomas — maintained near silence on the issue.
Chief Justice John Roberts, who has young children at home, expressed his agreement with the views of the commission. The use of the words in question, Roberts said, ‘is associated with sexual or excretory activity. That's what gives it its force.’
On the other hand, Justice John Paul Stevens appeared skeptical of the policy and said he doubted that the f-word always conveys a sexual image. "Isn't it true that that is a word that often is used with no reference whatsoever to the sexual connotation?" he asked.
The court might altogether avoid deciding whether the FCC policy violates the Constitution and instead maintain the stance that the FCC has not adequately explained the need for the new policy.
Meanwhile Carter Phillips, Fox's lawyer, submitted that increased usage of profanity was unlikely, as broadcasters do not permit the use of certain words on television, even during late-night hours. Fluke instances of such usage are only witnessed in unscripted incidents on live television, he said, and urged the justices to strike down the government policy as an unconstitutional restriction on free speech rights.
On the other hand, Solicitor General Gregory Garre, the Bush administration's top Supreme Court lawyer, said that despite the availability of options, "most Americans still get their information and entertainment from broadcast TV." Garre said going against government regulation of broadcast indecency would create a world that’s free-for-all.
A decision in the case is expected by July.
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