But they also said they understood that the broadcast networks, which are subject to regulation and fines from the Federal Communications Commission, reside for most Americans one remote-control button away from cable channels that are free to show whatever they want.
“You — what do you call it, you surf? — you go through all the channels,” Justice Anthony M. Kennedy said. “And it’s not apparent to many people which are broadcast and which are not.”
He wondered whether there is still a “public value” in “having a particular segment of the media with different standards than other segments.”
Solicitor General Donald B. Verrilli Jr. told the court that there is and that broadcast networks must accept some obligations in return for the enormous benefit of access to the airwaves.
“They argue, however, that neither Congress nor the commission may, as a condition of their licenses, require that they refrain from broadcasting indecent material when children are most likely to be in the audience,” Verrilli said.
He received his strongest support from Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, both of whom have been highly critical of government efforts to curtail speech in other settings.
“Sign me up,” Scalia said, for the proposition that “the government is entitled to insist upon a certain modicum of decency” on the public airwaves.
Roberts, the only member of the court who has young children, told Washington lawyer Carter G. Phillips, who is representing Fox and other networks: “All we are asking for, what the government is asking for, is a few channels where you can say . . . they are not going to hear the S-word, the F-word. They are not going to see nudity.”
Justices Samuel A. Alito Jr. and Elena Kagan noted that the concept of “public airwaves” is disappearing, as nearly nine in 10 Americans watch the broadcast networks via cable or satellite.
“Broadcast TV is living on borrowed time,” Alito said. “It is not going to be long before it goes the way of vinyl records and eight-track tapes.”
Still, Alito wondered if the FCC power were revoked, whether the result might be “people parading around in the nude and a stream of expletives.”
The networks are asking the court to reconsider its 1978 decision in
FCC v. Pacifica Foundation
, in which it upheld the commission’s decision that an afternoon radio broadcast of comedian George Carlin’s 1973 monologue about words that could not be said on television violated indecency standards.
The court found that the FCC was within constitutional boundaries to police the radio and television airwaves during the times children were likely to be watching and listening (between 6 a.m. and 10 p.m.).
Phillips said there was little controversy about the way the FCC performed that role until 2004, when it held that even one-time utterances of profanity could be penalized.
The court was also considering ABC’s challenge of an FCC decision that a seven-second camera pan of an actress’s bare buttocks in a 2003 episode of “NYPD Blue” violated indecency standards. That resulted in a $1.2 million fine for 40 ABC affiliates that aired the show (including a Texas station owned by a subsidiary of The Washington Post Co.).
The networks said the rulings violate the First Amendment and the Fifth Amendment’s guarantee of due process.
Kagan sympathized with what the networks said was a quandary in not knowing exactly what the FCC would find objectionable. For example, the FCC allowed profanity in an ABC broadcast of the movie “Saving Private Ryan” but disallowed some of the same words in a PBS documentary about blues singers. It fined ABC over the “NYPD Blue” episode but allowed full frontal nudity in a broadcast of the movie “Schindler’s List.”
“The way that this policy seems to work, it’s like nobody can use dirty words or nudity except for Steven Spielberg,” Kagan quipped, calling it a “serious First Amendment issue.”
Justice Ruth Bader Ginsburg was concerned as well, she said, about FCC “censors.”
Seth Waxman, who was a solicitor general in the Clinton administration and was representing ABC, said such subjective standards are “constitutionally intolerable.”
He also said family groups were flooding the FCC with trivial complaints, such as “the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks.”
The justices looked up at the friezes on all four walls of their courtroom. “Right over here, Justice Scalia,” Waxman directed.
The justices are considering decisions from the U.S. Court of Appeals for the 2nd Circuit in New York that found for the networks, saying the agency’s context-heavy determinations about indecency mean that broadcasters “are left to guess” when profanity and nudity might be deemed appropriate or punishable.
Justice Sonia Sotomayor, who served on that court, has recused herself from the cases. They are FCC v. Fox Television Stations and FCC v. ABC.