The U.S. Supreme Court seemed disinclined during a hearing today to meddle with FCC rules governing decency on the public airwaves. The nation’s television networks seek to overturn a 1978 decision that upheld the FCC’s authority to regulate radio and television content, at least during the hours when children are likely to be watching or listening. For a long time following the 1978 ruling the FCC let slide without penalty occasional one-time uses of curse words. But following several awards shows with cursing celebrities in 2002 and 2003, the FCC toughened its policy. The 2nd U.S. Circuit Court of Appeals in New York declared the FCC policy unconstitutionally vague. Chief Justice John Roberts, the only member of the court with young children, said “All we are asking for, what the government is asking for, is a few channels where … they are not going to hear the S-word, the F-word, they are not going to see nudity.” Justice Antonin Scalia also favored regulation. “These are public airwaves. The government is entitled to insist upon a certain modicum of decency.” Justice Anthony Kennedy suggested the indecency rules were “an important symbol for our society, that we aspire to a culture that’s not vulgar in a very small segment.”
Inconsistent standards of enforcement troubled some justices. One frequently cited example was the FCC’s decision not to punish ABC for airing Saving Private Ryan with its strong language, while objecting to the same words when uttered by celebrities on live awards shows. Justice Elena Kagan said the FCC policies amounted to “Nobody can use dirty words or nudity except Steven Spielberg,” director of Saving Private Ryan. In another case the FCC held that swearing by blues masters in a music documentary produced by Martin Scorsese was indecent. Nudity in “Schindler’s List,” another Spielberg film, was allowed, but a few seconds of partial nudity in the television police drama “NYPD Blue” was not. Justice Samuel A. Alito Jr. suggested the court should not rush to resolve a question concerning a technology on its last legs. “Broadcast TV is living on borrowed time,” he said. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”
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