During oral arguments concerning the government’s appeal of a Second Circuit Court ruling against FCC findings of indecency that pertain to “fleeting expletives” on live television, justices of the U.S. Supreme Court appeared amenable to the notion that the FCC still has a constitutional role to play in regulating broadcast indecency. Some justices, however, also sympathized with broadcaster arguments that uneven enforcement of indecency rules by the FCC in recent years has had the effect of chilling free speech. On Tuesday, eight of the nine justices participated in arguments in the closely-watched case, in which broadcasters are seeking a reversal of the high court’s landmark 1978 ruling in FCC v. Pacifica. (Justice Sonia Sotomayor, a member of the Second Circuit court at the time of its 2010 ruling, has recused herself from the case.) In Pacifica, the Supreme Court affirmed the right of the FCC to ban as indecent the “seven dirty words” uttered in a famed radio monologue by comedian George Carlin. Unlike Pacifica, which involved repeated and deliberate utterances of curse words over broadcast airwaves, the case at hand involves momentary, unscripted profanity that occurred on live awards shows aired in 2002 and 2003. Although the Supreme Court determined in 2009 that the FCC was procedurally correct in invoking its ban against expletives with respect to the incidents in question, the justices are now considering whether the FCC’s recent application of the indecency rules violates the free speech and due process clauses of the U.S. Constitution. Appearing on behalf of the FCC, U.S. Solicitor General Donald Verilli maintained that, in return for spectrum rights that were awarded free of charge, broadcasters should be obligated to uphold certain public interest obligations that include regulations against indecency. Voicing agreement, Justice Antonin Scalia suggested that a “modicum of decency” was not an unreasonable price for broadcasters to pay. Justice Anthony Kennedy lauded the FCC’s indecency standard as “an important symbol for our society, that we aspire to a culture that’s not vulgar.” Chief Justice John Roberts, on the other hand, pointed to the abundance of programming choices on cable networks that are exempt from decency regulations, stressing that the government’s goal is to preserve “a few [broadcast] channels where [children] are not going to hear the S-word, [or] the F-word.” Citing contradictory FCC enforcement efforts that punished fleeting utterances of expletives on live awards shows yet allowed usage of that same language during a broadcast of the Hollywood film Saving Private Ryan, counsel for the Fox and ABC television networks countered that the FCC’s actions violate the First Amendment rights of broadcasters. As Justice Ruth Bader Ginsberg voiced concern about FCC “censors,” Justice Elena Kagan concurred that the broadcasters had raised “a serious first Amendment issue,” quipping: “the way this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg.”
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Supreme Court, broadcasters debate constitutionality of FCC indecency rules
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