WASHINGTON — The US Supreme Court questioned whether battling indecency made sense in these times, in a case involving blurted broadcasting of curse words, and TV series’ bare buttocks shots.
Justices reviewing the case were vocally divided. Some insisted on keeping regulation in place while others stressed that the vast number of cable channels meant much programming already escaped federal regulation. Others argued that new technologies made it easier to implement parental controls.
On the heels of a string of incidents on different networks, the court was asked by the Federal Communications Commission, FCC, whether its decency-minded regulation was in line with the Constitution and freedom of speech.
In some of the incidents under the microscope, singer-actress Cher and reality TV star Nicole Richie used swear words during ceremonies that were broadcast live on Fox television.
In another, an episode of the series “NYPD Blue” broadcast on ABC pictured a nude woman from behind as she entered a shower.
The networks’ case won a boost when a New York appeals court ruled that the definition of indecency on television and radio was constitutionally unclear, and ran counter to free speech.
But the FCC, with members named by the government, appealed.
Government attorney Donald Verrilli, representing the FCC, argued that the networks should be a “safe haven” at times when children typically are watching television.
On public airwaves, “the government is entitled to insisting on a certain modicum of decency,” conservative justice Antonin Scalia said.
“All the government is asking for are a few channels where you are not going to hear the F-word and the S-word and… see nudity,” added chief justice John Roberts, another conservative.
Justice Ruth Ginsburg, considered a progressive, asked why the FCC wanted to battle swear words on television, but still approved broadcast of Steven Spielberg’s “Saving Private Ryan,” known to contain plenty of cursing.
Apparently “nobody can use dirty words or nudity but Steven Spielberg,” noted Justice Elena Kagan, another progressive.
She said the FCC was acting arbitrarily on whether bare flesh was fit for television.
“Sometimes it’s allowed — as to some body parts — and sometimes it’s not allowed,” she added.
Carter Phillips, an attorney for Fox made his case for an uncensored cuss: “It’s inevitable, regardless, that people are going to continue to use language that they would naturally use. So yes, I do think you can expect on cable and any other forum in which you have humans speaking that this kind of language will expand.”
“The time has come to treat equally broadcast and… cable TV,” he urged.
The current definition of indecency, barring some change, involves images that show or describe sex organs or sexual activities, which in addition are shocking under prevailing social norms.